Supreme Court of the United Kingdom · Unanimous; lead judgment by Lord Neuberger, with a concurring judgment by Lord Hope
Facts
The Local Government Byelaws (Wales) Bill was passed by the Assembly in 2012 under Part 4 of the Government of Wales Act 2006, following the 2011 referendum. Among other things it removed the requirement that certain byelaws made by local authorities be confirmed, including confirmation by the Secretary of State, a Minister of the Crown, and gave the Welsh Ministers power to extend the list of byelaws not requiring confirmation. The Attorney General referred the question whether provisions of the Bill were within competence under s.112 of the 2006 Act.
Issue
Whether provisions of the Bill removing a pre-commencement function of the Secretary of State to confirm byelaws were outside competence under the restriction in Part 2 of Schedule 7 to the Government of Wales Act 2006, or fell within the exception for provisions incidental to or consequential on provisions within competence.
Held
The provisions of the Bill referred were within the legislative competence of the National Assembly for Wales.
Ratio
- The removal of a Minister of the Crown's function is within competence where it is incidental to, or consequential on, a provision within the Assembly's competence; removing the Secretary of State's role in confirming byelaws, as part of a scheme simplifying the byelaw regime for Welsh local government, was incidental to and consequential on the main provisions, and was within the exception in Schedule 7.
The judgments
Lord Neuberger (lead)
Construed the relevant provisions of Schedule 7, concluding that the removal of the confirmation function was reasonably ancillary to the main purpose of the Bill and could properly be described as incidental or consequential.
Lord Hope (concurring)
Emphasised that the 2006 Act should be interpreted according to the ordinary meaning of its words, like any other statute, while recognising that it was intended to create a coherent and stable settlement; the question of competence was to be answered by applying the rules Parliament laid down.
Key reasoning
- Schedule 7 lists the subjects on which the Assembly may legislate and sets general restrictions, including a restriction on removing or modifying pre-commencement functions of a Minister of the Crown without consent, subject to exceptions.
- A provision is incidental or consequential if it is subordinate or ancillary to a provision within competence and not itself the main purpose of the legislation; removing the Secretary of State's confirmation role was a natural consequence of simplifying byelaw procedures.
Where it fits in the module
In the Government of Wales Act topic the case shows how the conferred-powers model of the 2006 Act, with its subjects and restrictions, was applied in practice and how the reference procedure in s.112 works. Lord Hope's insistence on reading the Act like any other statute contrasts with the generous, constitutional reading in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, and the complexity it exposed contributed to the move to a reserved-powers model in the Wales Act 2017.
Criticisms
- The incidental or consequential test is vague and leaves much to judicial assessment of a Bill's main purpose, making the boundaries of competence hard to predict.
- A reference brought over a minor byelaw procedure illustrates how the conferred-powers model invited needless litigation, an argument used to justify the reserved-powers model of the Wales Act 2017.
- Insisting that devolution statutes are to be read like any other statute arguably underplays their constitutional character and the democratic mandate behind devolved legislation.
Written with AI (claude-opus-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself on Find Case Law. Spotted an error? Tell us.