Vetoing Devolved Legislation: What does Section 35 mean for Wales?
The political news of the week has been dominated by the passing of the Gender Recognition Reform Bill (Scotland) in the Scottish Parliament, and subsequent, unprecedented move by the UK government to enact section 35 of the Scotland Act 1998 - to prevent the Bill from proceeding to Royal Assent. The UK Government argues that the Bill infringes upon different gender recognition regimes across the UK, and will ‘adversely effect’ the operation of the UK Equality Act 2010.
Sometimes referred to as the ‘veto power’, a Section 35 order allows for the Secretary of State for Scotland to intervene to block any Scottish Parliament legislation that effects the operation of matters reserved to the UK Parliament. A 2012 Memorandum of Understanding refers to its use as “a matter of last resort”.
We often hear about the assymetrical nature of devolution in the UK. We now have a system stretching back to the early 20th century (in Northern Ireland at least) where devolution in different parts of the UK has evolved at different paces, and from different starting points.
But is there a similar blocking mechanism contained within any of the Acts of Parliament providing for devolution to Wales?
Given the uneven nature of devolution as we've laid out above, you'd be forgiven for thinking there isn't. But this is one aspect of devolution that is relatively consistent between not just Scotland and Wales, but Northern Ireland too.
2006 Government of Wales Act
Section 114 of the Government of Wales Act 2006 gives the Secretary of State for Wales the power to make an order prohibiting the Llywydd (Presiding Officer) of the Senedd from submitting a Bill for Royal Assent if the Secretary of State has reasonable grounds to believe that any provisions in the Bill:
· would have an adverse effect on any non-devolved matter,
· might have a serious adverse impact on water resources, supply or quality in England,
· would have an adverse effect on the operation of the law in England, or
· would be incompatible with any international obligations or the interests of defence or national security.
The Secretary of State has a limited period in which to make an order under section 114, and this is generally within the period of 4 weeks after the Bill is passed by the Senedd (or, if relevant, within 4 weeks after any determination of the Supreme Court as to whether the Bill is within legislative competence).
This veto is exercised through a negative statutory instrument presented to the UK Parliament, which would provide a legal instruction to the Presiding Officer of the devolved parliament not to present a bill to the King for Royal Assent.
If this veto power is used, it cannot be overturned by the devolved parliament to which it relates. The devolved government would have to either challenge via judicial review or introduce new legislation altogether.
For example, this would mean that although the Scottish Parliament has passed the Gender Recognition Reform Bill, it would not become law.
According to the House of Commons Library, this challenge could argue that the Secretary of State lacks “reasonable grounds” for believing the Bill would have an adverse impact on how the law operates with respect to reserved matters.
A court would either find that the order was made lawfully or unlawfully. If the latter, then it would cease to have any legal force or effect and the Presiding Officer would then be able to present the Bill for Royal Assent.
Role of the Supreme Court
It is sometimes may be necessary, or advisable, to take steps to establish whether a Bill is within the Senedd’s legislative competence before it becomes law.
While direct intervention from the Secretary of State has been (until now at least) an unprecedented step in devolved UK politics, disputes between devolved governments and the UK Government are not.
Both the Counsel General (for Wales) and the (UK) Attorney General have power to refer a Bill of the Senedd, or a provision within a Bill of the Senedd, or the question of whether any of its provisions refer to a protected subject-matter to the Supreme Court for a decision as to whether it is within Senedd Cymru’s legislative competence (see sections 111B and 112 of GoWA 2006). A reference can be made only during the four weeks immediately after the Bill is passed by the Senedd, and therefore before it receives Royal Assent and becomes an Act of Senedd Cymru.
This power to make a reference to the Supreme Court has already been exercised on a number of occasions.
Notable recent examples include:
· The first ever ‘Act of the Assembly’ on Local Government bye-laws;
· The Supreme Court deciding in favour of the Welsh Government in their plans to set up their own Agricultural Wages Panel in 2014;
· The Trade Union (Wales) Bill; which amends measures from the UK Government’s Trade Union Act as they relate to devolved public services;
· the UK Government’s reference of the Welsh ‘Continuity Bill’ to the Supreme Court; a Bill tabled by the Welsh Government in response to a perceived ‘power grab’ by the UK Government through the EU Withdrawal Act.
While we await the final outcome of this unprecedented challenge to devolved legislation in Scotland, we can be certain that the eyes of devolved administrations here in Wales, and in Northern Ireland (where a similar veto exists in Schedule 14 of the 1998 Northern Ireland Act) will be fixed firmly on the result and what it could mean for their future respective legislative programmes.
But as long as the UK retains this 'quasi-federal' constitutional structure, the growing divergence between the devolved nations and Westminster surely means that there will be likely more constitutional scuffling to come.
For a bird's eye view.
Am olwg oddi uchod.
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