21 July 2014
Article by Alys Thomas, National Assembly for Wales Research Service
On the 9 July 2014 the Supreme Court handed down its judgement on the Agriculture Sector (Wales) Bill which had been referred to it by the then Attorney-General , theRt, Hon. Dominic Grieve QC MP under s112 of the Government of Wales Act 2006 (“GOWA”). He believed provisions in the Bill relating to employment matters were outside the Assembly’s competence. The hearing took place on the 17 and 18 February 2014 and these were described in an earlier blogpost. The unanimous judgement found that the Bill is within the Assembly’s legislative competence.
In the judgement the court reiterated the following principles, outlined in the previous judgement on the Local Government Bye-Laws (Wales) Bill, to be adopted in interpreting GOWA:
- the question of whether a provision is outside the competence of the Assembly must be determined according to the rules in section 108 and Schedule 7;
- the description of GOWA as an Act of great constitutional significance cannot be taken, in itself, to be a guide to its interpretation. The statute must be interpreted in the same way as any other statute; and
- if help is needed as to what the words mean, it is proper to have regard to the purpose that lay behind GOWA, namely to achieve a constitutional settlement.
The court identified the key question as whether the Bill related to “Agriculture”. The court was clear that agriculture does not refer solely to the cultivation of the soil or the rearing of livestock, but should be understood in a broader sense to cover the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry.
The court had previously held that “relates to” indicates “more than a loose or consequential connection”. The issue as to whether a provision relates to a subject is to be determined under section 108(7) of GOWA “by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.” The judgement states:
It appears from the consultation process that led to the Bill that its purpose was to regulate agricultural wages so that the agricultural industry in Wales would be supported and protected. The legal and practical effects of the Bill are consistent with that purpose. Its purpose and effect are to establish a statutory regime for the regulation of agricultural wages and other terms and conditions of employment within the agricultural industry in Wales. The purpose and effect of such a regime are to operate on the economic activity of agriculture by promoting and protecting the agricultural industry in Wales.
The court further noted that employment and industrial relations are not specified as exceptions. Although certain aspects of employment and remuneration are specified as exceptions, “that suggests that there was no intention to create a more general limitation on legislative competence”.
The First Minister made a statement in Plenary in which he said:
It is an important ruling in this sense. From my understanding of it, what it says is that, in order for the Assembly to have legislative competence, it does not have to show that a proposed piece of legislation is entirely within a devolved area as long as it comes within one of the fields specified in Schedule 7. So, as the Supreme Court said in the judgment, it is possible to argue that the issue of agricultural wages sits in the field of agriculture or, indeed, sits within the purview of employment law. What the Supreme Court seemed to suggest is that, as long as it can be brought within Schedule 7 of the Government of Wales Act 2006, it is within the Assembly’s legislative competence. It does not have to be fully within devolved legislative competence in order for it to be within the competence of the Assembly.
The Counsel General, Theodore Huckle QC, answering questions in Plenary on the same day, said, “I think that this is a very important decision because it upholds the breadth of the devolution settlement even in its current form”.