Welsh Government
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First Welsh Bill is lawful – Counsel General
The Attorney General for England and Wales, Dominic Grieve QC MP referred the Local Government Byelaws (Wales) Bill to the Supreme Court in order to seek a determination on whether clauses that remove the function of the Welsh Ministers and the Secretary of State to confirm certain byelaws are within the legislative competence of the National Assembly for Wales.
The Counsel General will respond to the referral – which means that the Bill cannot currently go forward for Royal Assent following unanimous approval by Assembly Members - on behalf of the Welsh Government. The National Assembly for Wales and the Attorney General for Northern Ireland, John Larkin QC will also participate.
The Bill seeks to empower local authorities in Wales to take ownership of local laws by simplifying and localising procedures for making, confirming and enforcing local authority byelaws, removes the function of the Welsh Ministers and the Secretary of State to confirm byelaws. The aim, in addition, is to reduce the bureaucracy and length of time it currently takes to make and confirm byelaws - partly due to the requirement for confirmation by the Welsh Ministers.
The Bill was the first to be passed by AMs since the National Assembly gained direct law-making powers following the Welsh referendum held on 3 March 2011.
Theodore Huckle QC said:
“Byelaws are local laws that seek to address local issues. The Welsh Government believes that local government is best placed to take responsibility for making these byelaws without input from Welsh Ministers or the Secretary of State. That is why the Bill removes the requirement for Welsh Ministers or the Secretary of State to confirm byelaws.
“The Government of Wales Act 2006 provides that an Act of the Assembly may remove or modify a pre-commencement function of a Minister of the Crown without the consent of the Secretary of State if the provision is incidental to, or consequential on, any other provision contained in the Act of the Assembly.
“I will seek to argue that the decision to remove the function of Welsh Ministers and the Secretary of State is incidental to, or consequential on the provisions of the Bill that set out the new localised procedure for making byelaws. In these circumstances, the consent of national government (whether that is the Welsh Government or the UK Government) is not, in our view, required.”
Mr Huckle continued:
“I will argue, that in practice in the case of the byelaws under consideration it has invariably been the case, in any event, that byelaws are submitted to the Welsh Ministers for approval. We are not aware of any instances when the Secretary of State has been requested to confirm Welsh local authority byelaws.
“It is therefore the view of the Welsh Government that the provisions of the Bill to localise procedures for making, confirming and enforcing local authority byelaws brings the Bill within the legislative competence of the National Assembly for Wales.”
