Developments in the Supreme Court

6 March 2014

Article by Alys Thomas, National Assembly for Wales Research Service

The Agriculture Sector (Wales) Bill (“the Bill”) was passed by the Assembly on 17 July 2013. Its purpose is to re-introduce in Wales legislation in respect of agricultural wages. Such legislation had previously been contained in the Agricultural Wages Act 1948 but was repealed by the Enterprise and Regulatory Reform Act 2013, enacted by the UK Parliament. The Bill proposes to establish a regime setting minimum terms and conditions of employment for agricultural workers, including minimum wages and sickness and holiday entitlement.

However, under s112 of the Government of Wales Act 2006 (“GOWA”)  the Attorney General, the Rt, Hon. Dominic Grieve QC MP, referred the Bill to the Supreme Court on the grounds that he believed provisions in the Bill relating to employment matters are outside the Assembly’s competence.

Proceedings took place on the 17 and 18 February 2014 in front of five judges, including the Lord Chief Justice, Lord Thomas. The Attorney General appeared in person and the Counsel General, Theodore Huckle QC, appeared for the Welsh Government. The Attorney General did not believe that the heading ‘Agriculture’ in schedule 7 to GOWA should be read as including wages and such an interpretation would lead to a patchy settlement. He noted that in the Scotland Act 1998 employment was reserved to Westminster, although agricultural wages were an exception where the Scottish Parliament does have competence.

The Attorney General also drew the court’s attention to correspondence between the drafters of the Government of Wales Bill in the Welsh Government and the UK Government, which he argued showed the wages were not intended to be covered under the ‘Agriculture’ heading. However, the judges pointed out that it was the intent of Parliament, not the executive, which was relevant and they would not be taking account of this evidence.

The Counsel General made a number of points in laying out his argument. He noted that the Supreme Court has to interpret what GOWA says and employment is not mentioned in Schedule 7 either as a subject or an exception. He also made reference to the “purpose and effect test” in s108 (7) of GOWA, arguing that the purpose of the legislation is to protect and improve agriculture and this is made clear in Explanatory Memorandum to the Bill and in Ministerial Statements.  Judgement in this case is expected in around six weeks.

However, this is not the only Bill before the Supreme Court. In December 2013 the Counsel General announced he was referring The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill to the Supreme Court, even though the Attorney General had informed him that he would not be referring it. This is the first time the Counsel General has used this power. In a statement to Plenary on 14 January 2014 he explained his reasons for doing so:

I reiterate my view that this Bill is within the competence of the Assembly. I consider, however, that it is appropriate in this case to have the issue of the competence of this Bill clearly resolved before it comes into force, given that bodies representing the insurance industry have consistently disputed the Assembly’s competence to pass this Bill. It should be clear that the decision to refer a Bill under section 112 is one that, under the ministerial code, and by statute, I take independently of the Welsh Government.

Before the Supreme Court I will contend strongly that the Bill is within the Assembly’s legislative competence. However, making a reference in this way before it receives Royal Assent enables the matter of the Bill’s competence to be determined without awaiting what I consider would be the inevitable challenge in potentially far more expensive and time-consuming court proceedings in due course, perhaps when substantial amounts of money had already been recouped under the Bill’s provisions and would quite likely be subject to repayment were the decision of the court to be adverse. The litigation costs of a reference being made during the intimation period are likely to be less than the costs of any challenge brought once the Bill is enacted under the usual judicial review procedure, as Supreme Court rules provide that orders for costs will not normally be made either in favour of or against interveners. The Association of British Insurers would be considered to be an intervener in the case of this Bill in relation to this reference. It is, in my view, in the public interest for me to take the initiative in seeking the Supreme Court’s decision on the Bill as it stands. Bodies representing the insurance industry may apply—and, we understand, will apply—to take part in these Supreme Court proceedings. In this way, all disputes can be settled at the earliest possible opportunity.

Proceedings on this Bill are likely to take place in May 2014.