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31 JAN 2013

Devolution in the Supreme Court – novel problems, established solutions

December 2012 saw two significant ‘firsts' in the Supreme Court - the first time that an Act of the Scottish Parliament has been impugned on the basis that its provisions relate to specific reservations in the Scotland Act, and the first challenge to a Welsh Assembly Bill. Indeed the latter of these cases combined a number of unique aspects - the Bill in question is the first to have been passed by the Welsh Assembly under the Government of Wales Act 2011, and the case represents the first challenge to legislation of either devolved administration to be brought by the UK Government. These cases are of note in that they both raise important issues of statutory interpretation, as well as containing interesting comment on the nature of devolution to the two administrations and the impact that has, or otherwise, on application of the statutes.

In Local Government Bye-laws (Wales) Bill,[1] the Attorney General made a reference to the Supreme Court on the question of whether provisions purporting to remove the power of the Secretary of State to confirm bye-laws concurrently with the Welsh Ministers amounted to a modification of the pre-enactment powers of the Crown within the meaning of Part 2 of Schedule 7 of the Government of Wales Act 2006.

In Imperial Tobacco v The Lord Advocate,[2] the tobacco company pursued its claim, unsuccessful in both the Outer and Inner House of the Court of Session,[3] that provisions of the Tobacco and Primary Medical Services (Scotland) Act 2010 (the 2010 Act) related to reserved matters and as such were outside legislative competence. The provisions under challenge prohibit the display of tobacco products for sale and the sale of such products by vending machine.

Both cases considered key matters of statutory interpretation. The Government of Wales Act 2006 states that a provision which purports to remove or modify a pre-commencement function of the Crown, or to confer the power to do by subordinate legislation, is outside legislative competence.[4] There is an exception, however, where the provision in question is incidental to or consequential on any other provision contained in an Act of the Assembly.[5] Lord Neuberger, giving the judgment of the court, took time to outline the approach to be taken. Whether or not the impugned provision is incidental to or consequential on another is a question of substance rather than form. A number of factors pointed to a conclusion in the Welsh Assembly's favour in relation to the removal of the power. Firstly, the primary purpose of the provision was to remove the power of the Welsh Ministers to confirm bye-laws relating to certain issues as part of a general movement to streamline local government in Wales - an exercise which had already been undertaken in England. The purpose could not be achieved without removing the powers of the Secretary of State, particularly given that they existed concurrently to those of the Welsh Ministers. Further, the enactments listed related to subject matter over which the Secretary of State was unlikely to exercise their power, and indeed such a power arose only as a result of a ‘fall back' provision contained within section 236(11) of the Local Government Act 1972. Finally, Lord Neuberger noted that to hold otherwise would be to deprive the ‘incidental to or consequential on' exception of any real meaning, as it was hard to imagine a provision which would be saved by this is not the one in question.

The more difficult question, however, was that raised by section 9 of the Bill, which would give the Welsh Ministers the power to add to the list of enactments for which there was no confirmatory power for either the Welsh Ministers or the Secretary of State. Given that this is, on the face of it, a broad power, and that the subject matter of the enactments from which the power would be removed was a factor in finding that the removal was incidental to the broader purpose, the solution found by the courts was a little more complex. The Supreme Court has imposed a very narrow interpretation of section 9, in doing so referring to section 154(2) of the Government of Wales Act 2006. The court noted that if the power allowed the inclusion of any enactment it would fall outside legislative competence, but that it should be limited to situations where either only the Welsh Ministers have confirmatory powers, or where a Minister of the Crown holds such a power its removal is incidental or consequential. Lord Neuberger added that although there are no express words imposing such a limitation, it is clearly implicit as the Welsh Assembly lacks the competence to impose any greater power on its Ministers.

In Imperial Tobacco the court focused firstly on what it meant for a challenged provision to ‘relate to' a reserved matter. Lord Hope, referring to a number of authorities, held that it required more than a loose or consequential connection. As a result, it was necessary to examine the purpose of the provision. He supported a generous approach to this with reference to pre-enactment publications such as committee reports, as well as the headings and sidenotes in the Bill, as these had been provided to give guidance to lawmakers and formed part of the Act's context. Post-enactment publications such as explanatory notes, however, have no greater weight than other commentary on the meaning.

From here Lord Hope turned to the content of the reservations. There were three grounds of challenge here - that the restrictions contained within the 2010 Act related to the reserved matters of sale and supply of goods and consumer protection,[6] and that they modified the criminal law in relation to either of these reserved matters.[7] In relation to the first ground, despite having begun his judgment by stating that the Scotland Act 1998 is to be construed like any ordinary statute, Lord Hope found that the heading ‘sale and supply of goods' should not be given the ‘ordinary and natural' meaning proposed by Imperial Tobacco, as Scots private law, including the law of obligations and contracts, falls within the competence of the Scottish Parliament. At this point Lord Hope identifies a key factor behind his reasoning - in his view, reserved matters are intended to be restricted to those issues in which the UK as a whole has an interest. This consideration cannot override an obvious meaning, but remains relevant. As for consumer protection, it too received a narrower interpretation than Imperial Tobacco argued for. As for whether the challenged provisions could be said to relate to reserved matters, the key here was to look at the purpose of the provisions. This was very clearly to reduce or eliminate the sale of tobacco products by reducing their visibility and restricting the ways in which they could be sold. The provisions are not aimed at restricting supply and are not related to safety standards, therefore they could not be said to relate to reserved matters. Finally, they contained no amendment to existing regulations and created no new offences. The criminal law pertaining to sales would not be affected.

Devolution themes

Given the importance of both cases, it is not surprising that the Supreme Court took time to examine the devolution settlements as a whole. In both cases the Court was careful to stress that the Government of Wales Act 2006 and the Scotland Act 1998 did not, in spite of their particular status, merit an interpretative approach any different to that of a normal statute. Lord Hope, who gave a second judgment in Local Government Bye-laws and the judgment of the Court in Imperial Tobacco, noted on both occasions that the Court's role was the interpretation of a statutory regime laid down by the UK Parliament and that, particularly in relation to the powers of the Scottish Parliament, it was not for the courts to decide where legislation was best made but rather to apply existing rules. He elaborated in Imperial Tobacco, adding that, as with any other statutory regime, the rules laid down in the Scotland Act should be interpreted to allow for a coherent, stable and workable system. The best way of achieving this was to provide consistent interpretation, which was in turn best achieved by applying the ordinary meaning of words. Further, it was important to have regard to the purpose of the statute, which was to give the Scottish Parliament effective legislative powers whilst providing safeguards to ensure it remained within legislative competence. The Scottish courts have on occasion appeared to elevate the status of the Scotland Act in seeking to create such a stable regime, but Lord Hope clearly grounds this approach as one inherent to all statutory interpretation.

Of particular interest in the Local Government case is the extent to which it is apparent that case law on Scottish devolution will inform the Court's approach to the Government of Wales Acts. Lord Hope's judgment draws heavily on Supreme Court case law on the Scotland Act, as well as outlining the history of challenges to Acts of the Scottish Parliament. He makes particular comparison of the ways in which power has been devolved - with the Scotland Act making a general transfer of powers to the Scottish Parliament, and the Government of Wales Act 2006 making a more cautious and piecemeal settlement. The differences in legislative competence between the two administrations come to the forefront in the procedural aspect of the Local Government Bye-laws case, as Lord Hope's view is that the use of a reference, which has never happened in relation to an Act of the Scottish Parliament, is due to the more restrictive nature of Welsh devolution.

In short, these cases seem to indicate a point in the road in the development of a coherent body of devolution law. It is of particular interest to see the role Scottish devolution cases promise to play as the Welsh Assembly settles into its recent acquisition of powers, and commentators may be curious to see whether this approach is followed to the same degree in the lower courts and outside the decisions of prominent Scottish judges.


[1]              [2012] UKSC 53.

[2]              [2012] UKSC 61.

[3]              See Re Imperial Tobacco Ltd, Judicial Review [2010] CSOH 134; [2010] SLT 1203 and Imperial Tobacco v The Lord Advocate [2012] CSIH 9, [2012] SC 297.

[4]              Paragraph 1, Part 2 Schedule 7 Government of Wales Act 2006.

[5]              Paragraph 1(b), Part 3 Schedule 7 Government of Wales Act 2006.

[6]              Section C7 and C8, Head C, Part II Schedule 5 Scotland Act 1998.

[7]              Paragraph 2 Schedule 4 Scotland Act 1998.


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