The emergence of a devolution jurisprudence?

In late 2012 the UK Supreme Court decided two cases on the law of devolution. On the face of it each was quite separate from the other but the Court clearly saw them as being closely related and took the opportunity to develop some potentially important principles of devolution law. Each case was a challenge to the legislative competence of a devolved legislature. The first case was from Wales. The Attorney General referred to the Supreme Court the question of whether certain provisions of the Local Government Byelaws (Wales) Bill were within the legislative competence of the National Assembly. The second case was an appeal from the Court of Session in Edinburgh. Imperial Tobacco Ltd argued that certain provisions of the Tobacco and Medical Services (Scotland) Act 2012 were outwith the legislative competence of the Scottish Parliament. In each case the Supreme Court unanimously rejected the challenge and upheld the legislation.

Welsh Byelaws

The Attorney General’s reference concerned the first Bill passed by the National Assembly under the powers conferred upon it by the provisions of the Government of Wales Act 2006 (“GOWA”) that came into effect following the referendum in 2011 (see T&T pp 250-2). The Local Government Byelaws (Wales) Bill was intended to simplify procedures for making and enforcing local authority byelaws in Wales. The Attorney General referred sections 6 and 9 of the Bill to the Supreme Court. Section 6 removed the need for certain byelaws to be confirmed by the Welsh Ministers or the Secretary of State; section 9 provided that the range of byelaws in respect of which confirmation would no longer be required could be extended.

The legal challenge to section 6 centred upon Sched 7, Part 2, para 1 to GOWA, which provides that “A provision of an Act of the Assembly cannot remove or modify … any pre-commencement function of a Minister of the Crown”. For the Welsh Ministers, it was contended that section 6 was saved by Sched 7, Part 3, para 6(1)(b), which provides by way of exception that the rule just quoted does not prevent a provision of an Act of the Assembly removing or modifying a pre-commencement function of a Minister of the Crown if that provision is merely “incidental” or “consequential”.

When the equivalent provisions of the Scotland Act 1998 were examined by the Supreme Court in Martin v Most [2010] UKSC 10, the matter divided the Court three-to-two. In the Welsh Byelaws case, by contrast, the Court was unanimously of the view that the Welsh Ministers were correct that section 6 of the Local Government Byelaws (Wales) Bill was saved by Sched 7, Part 3, para 6(1)(b). Lord Neuberger gave six reasons for reaching this conclusion, of which the most important was that the primary purpose of the Bill could not have been achieved without the removal of the Secretary of State’s confirmatory powers. (The Secretary of State’s confirmatory powers were removed as regards byelaws made by local authorities in England by section 129 of the Local Government and Public Involvement in Health Act 2007.)

As for section 9 of the Bill, which was also found to be within the Assembly’s legislative competence, the Supreme Court relied on GOWA section 154(2). This section provides that a provision of an Act of the Assembly is, “if possible”, to be read “as narrowly as is required for it to be within competence”. Using this provision, section 9 was interpreted to mean that in the future the Welsh Ministers could remove the need for confirmation of byelaws only if the confirmation would have been for the Welsh Ministers and not the Secretary of State or – where it would have been for the Secretary of State – if the removal of the power was merely incidental or consequential.

Imperial Tobacco

The Tobacco and Primary Medical Services (Scotland) Act 2010, section 1, prohibited the display of tobacco products at the point of sale. Section 9 of the Act prohibits vending machines for the sale of tobacco products. Imperial Tobacco challenged the lawfulness of these provisions, arguing inter alia that they related to matters “reserved” to the United Kingdom Parliament under Sched 5 to the Scotland Act 1998. Their challenge was unsuccessful in both the Outer House and, on appeal, in the First Division of the Court of Session; it was equally unsuccessful in the Supreme Court.

The core of Imperial Tobacco’s argument was that sections 1 and 9 of the Act related to “the sale and supply of goods to consumers” and to “product safety”, both of which are expressly listed as matters reserved to the United Kingdom Parliament (by Sections C7 and C8 of Head C in Part II of Sched 5 to the Scotland Act 1998). Under section 29(3) of the Scotland Act, whether a provision of an ASP “relates to” a reserved matter is to be determined by reference to its purpose (having regard, among other things, to its effect in all the circumstances). The purpose of sections 1 and 9 was to reduce tobacco sales, on grounds of public health. The Supreme Court ruled that this purpose could not be said to have “anything to do with consumer protection”: the aim was to “discourage … sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices” (para 40).

A devolution jurisprudence?

In the course of the last 12-18 months there has been much academic and political argument about the proper interpretation of the UK’s various devolution statutes. The impetus behind much of the controversy was the dispute over whether the Scotland Act 1998 confers on the Scottish Parliament the competence to legislate on any sort of independence referendum. (My view remains that it does not.) That argument is no longer of any immediate practical concern, owing to the fact that the requisite legislative competence has now been conferred on Holyrood by an Order in Council made under section 30 of the Scotland Act. (An earlier post here dealt with the key developments up to March 2012; a forthcoming post will summarise developments since then.)

In both the Welsh Byelaws case and Imperial Tobacco the Supreme Court took the opportunity to set out its view of the proper legal interpretation of the devolution legislation. A starting point is to bear in mind the Court’s view that the three principal pieces of legislation – the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 – have both similarities in common and differences between them. Whilst, in some circumstances, it will be appropriate to read across from case law concerning one of these enactments to arguments about another of them, caution must always be exercised in doing so. Thus, while Lord Hope stated in the Welsh Byelaws case that “the essential nature of the legislatures that the devolution statutes have created in each case is the same” (para 81), Lord Neuberger in the same case warned that these are “different statutes, and one must therefore be wary of assuming that they have precisely the same effect, as context is so crucially important” (para 50).

One difference, it is now clear, is that while in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 (see T&T pp 88-90) the House of Lords ruled that the Northern Ireland Act, being a “constitutional statute”, should be interpreted “purposively and generously” the Supreme Court is highly reluctant to read this across into the interpretation of GOWA or the Scotland Act. In the Welsh Byelaws case Lord Neuberger stated that it was unnecessary for him to say anything about whether the approach in Robinson could or should inform the judicial interpretation of GOWA (para 69) but Lord Hope stated that describing a devolution statute as a “constitutional statute” was a matter of description only (i.e. that such a statute concerns matters of constitutional law) and could not be taken as a guide to the proper interpretation of the statute (para 80). Indeed, for Lord Hope, a devolution statute “must be interpreted like any other statute”. Lord Hope said the same thing in his judgment in Imperial Tobacco: “the description of the [Scotland] Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation” (para 15). The First Division of the Inner House had reached the same conclusion in Imperial Tobacco, Lord Reed (now, of course, a Justice of the Supreme Court) making it plain that even if the political context of the Northern Ireland Act justified a more generous interpretation of its terms, no such argument could be made for the Scotland Act. Robinson v SSNI, it seems, while not being overruled, has been confined to its facts. The Court of Session and the Supreme Court alike have made it plain that Robinson v SSNI does not lay down a general rule as to the interpretation of the UK’s devolution legislation. This, in my view, is very much to be welcomed, not least because it sits much more comfortably with our long-standing precepts of the sovereignty of Parliament than does the rather awkward judgment in Robinson.

In Imperial Tobacco, Lord Hope stated that “it is unsatisfactory that there should continue to be room for doubt” on the matter of the proper interpretation of the Scotland Act 1998 (para 12). In order to clarify the matter, his Lordship set out three basic principles. First, “the question of legislative competence must be determined in each case according to the particular rules that have been set out in section 29 of and Schedules 4 and 5 to the 1998 Act” (para 13). Secondly, “those rules must be interpreted in the same way as any other rules that are found in a UK statute”. Devolution, he added, was designed to be “coherent, stable and workable” but these attributes, while proper to have in mind, do not amount to “a principle of construction” (para 14). That said, “the best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable” (ibid). To return for a moment to the debate about Holyrood’s competence to legislate for an independence referendum, some commentators had suggested that cases about tobacco legislation could not be taken as reliable indicators of how the courts would interpret an ASP that, without a section 30 Order, purported to authorise an independence referendum. Lord Hope’s statement just quoted gives the lie to this: the Scotland Act 1998 and the rules contained within it as to the legislative competence of the Scottish Parliament will be interpreted and enforced by the courts with constancy and predictability – their interpretation will not wax and wane according to some fanciful notion of whether the ASP is concerned with important constitutional matters or not.

A final point to note in Lord Hope’s judgment in Imperial Tobacco is his summary of section 29 of the Scotland – this is his third basic principle. While section 29 “does not create a presumption in favour of competence”, it is none the less intended, “within carefully defined limits, to be a generous settlement of legislative authority” (para 15). Perhaps this judicious statement should be borne in mind amid the political clamour for more powers to be devolved to Holyrood?

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The emergence of a devolution jurisprudence?