Agricultural Sector (Wales) Bill: Reference by the Attorney General for England and Wales

Facts

The National Assembly for Wales passed the Agricultural Sector (Wales) Bill, which provided for an Agricultural Advisory Panel for Wales with power to set minimum wages and other terms for agricultural workers in Wales. The Agricultural Wages Board for England and Wales had been abolished by the Enterprise and Regulatory Reform Act 2013. The Attorney General referred the question of whether the Bill was within the competence of the Assembly, which could legislate only on matters listed in the subjects of Schedule 7 to the Government of Wales Act 2006, to the Supreme Court.

History

The Attorney General made a reference directly to the Supreme Court under section 112 of the Government of Wales Act 2006, after the Bill had been passed by the Assembly and before it received Royal Assent.

Issue

Whether the provisions of the Bill relating to wages and terms of employment of agricultural workers related to the subject of agriculture in Schedule 7 to the Government of Wales Act 2006, so that they were within the legislative competence of the Assembly, or whether they related to employment, which was not within the listed subjects.

Held

The Bill was within the legislative competence of the Assembly. Its provisions, considered by their purpose and effect, related to agriculture, the subject listed in Schedule 7, even though they dealt with wages of agricultural workers.

Ratio

• Whether a provision of an Assembly Bill relates to a listed subject is decided by examining its purpose and effect in all the circumstances, and a provision relates to a subject if it has more than a loose or consequential connection with it. A Bill that creates machinery to set wages and conditions for agricultural workers has a purpose connected with agriculture and so relates to that subject, even if it also affects employment.

Key reasoning

• The test of competence under the 2006 Act requires the court to look at the purpose of the provisions, having regard to their effect in all the circumstances, so the substance of the Bill is the key and not its label.
• The purpose of the Bill was to regulate the pay and conditions of the agricultural workforce as part of the agricultural sector, and not to make general provision on employment.
• That a provision affects employment law, which is not a listed subject, does not take it outside competence if its purpose relates to a listed subject, because a Bill may relate to more than one matter.

Where it fits in the module

In the topic on devolution to Wales, the case demonstrates how the courts police the boundaries of the Assembly competence under the conferred powers model of the Government of Wales Act 2006, and how they treat a Bill with elements that fall into different categories. It should be read with the changes made by the Government of Wales Act 2017, which moved to a reserved powers model, and with the Scottish decision on the Independence Referendum Bill. The questions are how generous the court should be to the legislature and whether the test is predictable.

Criticisms

• The test of more than a loose or consequential connection is wide and is not easy to apply, so competence may be uncertain until litigated, and it can give the Assembly powers that were not clearly intended when the subjects were listed.
• The approach concentrates on the purpose of the Bill and gives little weight to the fact that employment law was not conferred on the Assembly, so the decision could be said to allow the devolved legislature to enter fields reserved to Westminster by an indirect route.
• The reference procedure puts the courts in the position of resolving political disputes between governments, and the result depends on abstract questions of classification which do not reflect how the policy works in practice.