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Supreme Court Ruling- The effect on devolution
The ruling in the case of AXA v Lord Advocate recognised the primary status of legislation passed by a devolved Government.
The Welsh Government sees the judgment as recognition by the Supreme Court that the National Assembly has, within the scope of its policy areas, the same law making powers as the Westminster Parliament.
Please see background information below and the link to a Welsh Government written statement from the Welsh Government's Counsel General, Theodore Huckle QC:
- Why is it important to Wales?
Acts of the Assembly are not just a second class form of legislation. It sets a precedent for how Acts of the Assembly will be treated by the courts and it is clear from the judgment that the circumstances in which the courts may overturn an Act will be exceptional and – crucially – precisely the same as the circumstances in which a Westminster Act could be overturned.
What is the judgment about?
The Supreme Court’s judgment considered a number of issues but the issue of particular importance to the Welsh Government and for Wales is the extent to which Acts of the Scottish Parliament can be challenged in the courts. It considered the status of Acts of the Scottish Parliament and the National Assembly compared with Acts of the UK Parliament and whether they should be treated in the same way by the courts.
The Scotland Act 1998 sets out a framework under which a statutory judicial review of an Act of the Scottish Parliament may be brought. For example it can be on grounds that the legislation breaches human rights or that in passing it the Scottish Parliament has gone beyond its powers. This case was about whether Acts of the Scottish Parliament can be challenged not under the Scotland Act itself but under the general law on other grounds known as common law grounds ie. the law which is not set out in legislation but is developed by the judges through decisions of the courts. A public body can be judicially reviewed on various common law grounds including on the grounds that the body has behaved unreasonably, irrationally and arbitrarily. This form of challenge does not require specific provisions in an Act to provide the power for the challenge to be made.
In this case the appellants challenged the Damages (Asbestos-related Conditions) (Scotland) Act 2009 passed by the Scottish Parliament because it was unreasonable, irrational and arbitrary. Because they record the will of the people directly, and because of the respect that the courts must accord to the democratic process, and because of the sovereignty of the UK Parliament Acts of the UK Parliament have traditionally been excluded from challenge on common law grounds. The question the court had to consider in this case was the extent to which Acts of the Scottish Parliament have the same status as Acts of the Westminster Parliament. If they were the same then the question was should an Act of the Scottish Parliament also be excluded from judicial review on common law grounds in which case the 2009 Act could not be overturned by the Court on those grounds.
What did the Supreme Court say?
The hearing took place in June 2011. The First Minister intervened in the appeal and the Counsel General appeared in person before the Court. This is the first time that the Counsel General for Wales (in the Law Officer role created by the Government of Wales Act 2006) has appeared on behalf of the Welsh Government in the highest court in the land. The Counsel General argued that the National Assembly for Wales was a democratically elected legislature and that the limits of its powers were set out in the Government of Wales Act 2006 which expressly enables the Assembly to make laws in the same way that the Westminster Parliament makes laws, so that the laws of the Assembly are to be viewed as equivalent in status to those of Westminster provided the Assembly is otherwise acting within the scope of its devolved authority. The Courts could not therefore impose additional limitations that fell outside the scope of the 2006 Act.
The Supreme Court has given its judgment. The seven Supreme Court Justices have unanimously agreed with the position of the Welsh Government in its entirety. Whilst the case focused on devolved legislation, their Lordships did raise the possibility that even Acts of Parliament could be challenged where the legislation went so far as to undermine the rule of law or fundamental rights.. Their Lordships held that Acts of the Scottish Parliament could not be subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness. The same must apply to Acts of the National Assembly for Wales.