Editors’ note: This is the second in a two-part contribution by Prof Robert Thomas on the draft Wales Bill. The first part appeared on Wednesday, 2 December 2015.

An earlier post considered some aspects of the draft Wales Bill. This second post examines the issue of legislative competence and the proposed new necessity test.

Legislative competence

The draft Wales Bill seeks to introduce a clear and lasting devolution settlement for Wales by moving to a reserved-powers model. One of the most controversial aspects of the Bill concerns the new tests to determine the Welsh Assembly’s legislative competence and whether these tests provide certainty and clarity or whether they introduce more complexity and uncertainty.

Consider the following. The Welsh Government has published an analysis of 14 previously enacted Assembly Acts and concluded that they would have been outside competence under the draft Wales Bill. By comparison, the Wales Office has published its analysis and concluded that 20 of the 25 Assembly Acts could have been made in exactly the same way under the draft Bill. When the Welsh Government and the Wales Office arrive at such directly contradictory views and in the midst of tables accompanied by reasons why certain Assembly Acts either could or could not have been enacted under the draft Bill, it can be legitimately asked whether anyone knows for certain what the implications of the draft Bill will actually be. If not, then the Bill could be said to fall at the first hurdle in seeking to provide a clear and certain devolution scheme.

The uncertainty arises from how the new tests of legislative competence would apply in practice. These tests are buried away in schedules in the draft Bill. Their implications are neither satisfactorily explained by the Bill nor are they self-evident. The devil, as always, is in the detail.

There are, of course, existing tests of legislative competence in the Government of Wales Act 2006. Under this statute, the Welsh Assembly acts within its legislative competence if it legislates on one or more of the conferred subjects listed in that Act and if its legislation does not fall within any of the specified exceptions. Part of the problem with this scheme has been that silent areas in the 2006 Act generated uncertainty as to the legislative competence of the Assembly. For instance, the Assembly introduced the Agricultural Sector (Wales) Bill in 2013 to regulate agricultural wages on the ground that it had the competence to do so – agriculture is a conferred matter. However, the UK Government contended that the Bill was not within the Assembly’s competence because it related to employment and industrial relations – areas that were not devolved.

In the Agricultural Sector (Wales) Bill case in 2014, the Supreme Court held that, provided an Assembly Bill or provision fairly and realistically concerned a devolved matter (eg agriculture), it did not matter whether it might also be capable of being classified as relating to a subject which has not been devolved (eg employment). The 2006 Act did not require that an Act of the Assembly should relate solely to a devolved subject. This means that the Assembly has been able to legislate on silent subjects, such as employment. The ruling then clarified the devolution settlement in an expansive way which gave the Assembly the maximum possible scope to legislate.

However, the draft Bill would reverse the effect of this ruling. This is because many of the currently silent areas, such as employment, would be now explicitly reserved. Under the draft Bill, any provision of the Assembly will be outside competence if it relates to reserved matters. If therefore the Assembly sought to introduce a similar Bill to the Agricultural Sector (Wales) Act 2014 in a different area, such as the social care sector, then it would be outside the Assembly’s competence. This view is reinforced by the fact that the draft Bill provides that the subject-matter of the Agricultural Sector (Wales) Act 2014 is a specific exception to the general reservation of employment. The effect is to reverse the Supreme Court’s expansive interpretation of the 2006 Act in relation to the Agricultural Sector (Wales) Bill case and to reduce the Assembly’s legislative competence.

The necessity test

The Bill also subjects Assembly legislation to a new necessity test. This would apply whenever the Assembly legislates to change the law on reserved matters and private and criminal law. The Assembly would be unable to modify these areas of law unless: (i) the modification is ancillary to a provision made which has a devolved purpose; and (ii) the modification has no greater effect on the general application of the law than is necessary to give effect to that devolved purpose. In general terms, any Assembly Act modifying private and criminal law could not go any further than is necessary to achieve its (devolved) purpose. Further, Assembly legislation could not have a greater effect on the general application of private or criminal law than is necessary.

Why would the Assembly need to modify these areas of law? Part of the purpose of both criminal and private law is to enforce legal rules and regulations. If a legislature is to make effective laws, then it must also be able to provide for civil and criminal means of enforcement through its primary legislation. In other words, these legal tools are essential instruments if a legislature is to be able to make effective and enforceable laws.

On the other hand, Wales shares a legal system with England. As the Bill’s explanatory notes state, the purpose of the necessity test is “to provide a general level of protection for the unified legal system of England and Wales, whilst allowing the Assembly some latitude to modify those areas of law within the confines of the exceptions” laid out (para 32). The test is there to prevent the Welsh Assembly from changing areas of law such as tort, contract law, and criminal law any further than is necessary as these areas are law in both England and Wales.

However, it only takes a moment’s reflection to recognise that real difficulties are likely to arise in practice. If the purpose is to protect the unified legal system of England and Wales while allowing the Assembly “some latitude” to modify these areas of law, then precisely how much latitude is to be allowed to the Welsh Assembly? The applicable test is one of necessity, but what does this mean in practice? What would happen when the Welsh Assembly and UK Government arrive at different conclusions as to what is necessary? Which view would prevail? The Bill does not, indeed cannot, answer these questions; it merely poses them. But these questions go right to the centre of the Assembly’s legislative competence and whether the Bill will in fact provide a clear and stable devolution settlement.

Suppose, for instance, that the Assembly legislated to regulate landlords through a licensing scheme (housing is a devolved matter). The Assembly might legislate to make it a criminal offence for a landlord to operate without a licence. This would be permissible as it would be ancillary to the devolved purpose. The issue would then arise as to whether the creation of such an offence would have no greater effect on the general application of the criminal law than is necessary to achieve the devolved purpose. So, if the Assembly sought to modify the sentencing of all licensing offences, then this would go further than is necessary.

More legal challenges?

However, things are rarely so clear-cut in practice. There is often scope to argue that a particular law goes further than is necessary. The necessity test seems to set a high bar for the Assembly to satisfy. It also runs against the grain of conferring legislative power on the Assembly that it is able to exercise in its own right as a democratically elected institution. In the event of a dispute, it is highly likely that many Assembly Acts would be challenged before the Supreme Court – an outcome that contradicts the Bill’s purpose of providing a clear, robust, and stable devolution settlement and the recognised need to reduce references to the Supreme Court.

It is also uncertain how the Supreme Court would interpret and apply the necessity test. The court could adopt a strict approach: the Assembly could only go as far as is strictly necessary or required in the circumstances. This would provide clarity, but pose a high threshold for the Assembly to satisfy. Alternatively, the Supreme Court could adopt a flexible context-dependent approach in which the necessity of a measure would depend upon the weight to be attached to the Assembly’s legislative judgment as balanced against the nature of the provision and its consequences.

However, as we know, Supreme Court judges sometimes disagree amongst themselves when it comes to judicial review of policy. One needs only to think about the disagreements in recent Supreme Court cases such as R (SG & Ors) v Secretary of State for Work and Pensions and R (Tigere) v Secretary of State for the Home Department to recognise how the Supreme Court can arrive at different conclusions when reviewing the proportionality and necessity of policy measures.

To this can be added the significant incoherence in the Supreme Court’s case-law concerning the weight the court should attach to legislation made by the Welsh Assembly when called upon to determine the Assembly’s legislative competence and the legislation’s compliance with Convention rights. In the Asbestos Diseases (Wales) Bill case, the Supreme Court was split 3-2 on this issue. Lord Mance in the majority took the view that while weight should be attached to the view of the Welsh Assembly, it was for the court to form its own judgment on the issues of legislative competence and compliance with Convention rights. By contrast, in the minority, Lord Thomas took the view that “great weight” should be attached to the judgment of the Welsh Assembly as a democratically elected body with primary legislative competence. There was, Lord Thomas stated, no reason for treating the Welsh Assembly in any way different to the UK Parliament.

Once we get to this stage, it is very difficult to see how the draft Bill will be able to promote the constitutional values of clarity, certainty and intelligibility. On the contrary, the Bill seems to open up a wide area for further litigation and uncertainty concerning the Assembly’s legislative competence. The various tests – “ancillary to a provision which has a devolved purpose” and “no greater effect on the general application of the private or criminal law than is necessary to give effect to that purpose” – are ambiguous and likely to inhibit the Assembly’s policy and law making. The consequence may be for Welsh policy-makers to adopt a timid approach to avoid legal challenge.

It might be asked why this issue does not arise in relation to Scotland. The Scotland Act 1998 (Schedule 4, para 3) has a similar necessity test. Indeed, this test was lifted by the Wales Office as the basis for the provisions in the draft Wales Bill. However, in Scotland, private and criminal law are, of course, not reserved matters. The Scottish Parliament is able to modify its own private and criminal law. By contrast, England and Wales share a legal system. The choice seems to be between retaining the shared legal system and having a necessity test that will add additional complexity and potentially reduce the legislative ability of the Welsh Assembly or establishing a separate – or distinct – Welsh jurisdiction. The likelihood is that the discussion concerning the new necessity test will fuel the debate within Wales in favour of establishing a Welsh jurisdiction.

Another point raised by Professor Thomas Glyn Watkin concerns parity of treatment between the Welsh Assembly and the UK Parliament. If the purpose of the necessity test is to provide protection for the unified legal system of England and Wales, then should these tests apply only in relation to the Welsh Assembly? Should not they also apply to the UK Parliament when it legislates on England-only matters? The Bill is silent on this question, but the point has force. Why is the Welsh Assembly to be singled out for additional statutory controls when legislating while the UK Parliament when operating as an England-only legislator proceeds under the protective cover of parliamentary sovereignty?

Conclusion

It is unsurprising that the draft Wales Bill has provoked controversy. Its provisions are intricate and complex. In many important respects, the Bill reduces the Welsh Assembly’s legislative competence. It reverses the effect of two decisions of the Supreme Court. There is much force behind the view that the Bill does little to improve the current situation, but instead increases the uncertainty and instability of the Welsh devolution settlement. It also opens up wider scope for judicial challenge. Although the Bill does move toward a reserved-powers model, it reflects a conferred-powers approach. In short, the Bill is unlikely to deliver the clear and lasting devolution settlement that it promises. This is because of the way that the Bill is drafted. But it is also because the Bill reflects a top-down approach to what sort of devolution settlement and structure Whitehall is prepared to grant to Wales. Needless to say, this is an inadequate way to go about the task of constitution-building.

Things could be different. The UK Government could have worked in a more collaborative way with the Welsh Assembly and Government. It could have, as recommended by the Assembly’s Constitutional and Legislative Affairs Committee, used the principle of subsidiarity as the starting point. Fortunately, the Bill has a long way to go before it could be enacted. This should provide the opportunity to sort out some of the issues identified here. The Assembly’s Presiding Officer has proposed amendments to the Bill to resolve the issues discussed here. Further, the Bill will require a Legislative Consent Motion from the Assembly (see a recent blog on this by Alan Trench). As matters currently stand, the draft Bill stands little chance of being granted such consent.

Robert Thomas is Professor of Public Law at the School of Law, University of Manchester.

(Suggested citation: R. Thomas, ‘The Draft Wales Bill 2015 – Part 2’ U.K. Const. L. Blog (3rd Dec 2015) (available at https://ukconstitutionallaw.org/))