Indelible marks and legal brains
- 11 October 2012
- From the section Wales
UPDATE Wednesday 1600
I hope their lordships are enjoying their role in pinning down the parameters of devolution.
BBC Wales understands that the Wales Office is now questioning whether the Official Languages (Wales) Bill - that makes Welsh and English the official languages of the Assembly - goes beyond its legislative competence. They've asked the Attorney General to take a look at the bill before it receives Royal Assent. The suggestion is that under the Government of Wales Act 2006 the Assembly can legislate in relation to the Welsh language but not in relation to English.
The Assembly Commission say that any reference to the English language is incidental to the provision that the Bill makes in relation to the Welsh Language and so "in light of these factors the Assembly Commission has concluded that the right course of action is that the Bill should proceed as originally intended."
The Bill was passed just last week on what Rosemary Butler called a "historic day in the history of devolution and of Wales."
If this does end up in the Supreme Court, you start to wonder whether Groundhog Day would be more appropriate.
I'm taking a bit of a punt here but if I had to guess, I'd say that Lord Carnwath has never been to a tattoo parlour in Swansea.
I say that partly because - and here's another punt - I don't think that in Swansea they're called 'tattoo clinics' at all and because in all honesty, he just doesn't look like a man who'd have his wife's name written indelibly on his forearm.
Niether, come to that, do any of the other four judges who are sitting today in the Supreme Court. Their questions, howwever, are needle sharp. These are the men who'll decide whether the very first Bill passed by the Assembly, a significant moment in the story of devolution as the Presiding Officer, Rosemary Butler said at the time, is lawful or not.
The Attorney General and the UK Government argue that it is unalwful. A Bill whose purpose it is to cut Welsh Ministers out of the process by which local councils make bye-laws to deal with things like tattoo parlours, swimming baths and mortuaries has encroached, they argue, on the powers of the Welsh Secretary. Welsh ministers are welcome to abandon their own powers to intervene, they aruge but not those of a minister in the UK Government. The Welsh Government are confident the Bill as it stands is entirely lawful.
This is, to put it bluntly, surreal. I'm sitting in the rich surroundng of the Supreme Court in Westminster, with its oil paintings, intricate carvings and the four nations' emblems woven into the carpet. Amidst all of that I'm listening to the equally intricate arguments being constructed by the top legal minds in the country as they debate whether powers that are held 'concurrently' are the same as powers that are held 'jointly' and if not, do they also differ from powers that are 'incidental.'
But I'm also listening to Lord Carnwath struggling out loud to understand what one earth the Secretary of State for Wales' role would be in reality, if Swansea Council were to change the bye-laws with regard to tattoo parlours. No matter what the bare legal analysis, he ventured to suggest, isn't this really all about a political settlement and just how far devolution has come in practice?
Lord Hope picked up the theme. Whatever the complexities of the clauses, sections and sub-sections, 'the nub of the issue' he argued, was what the Bill was meant to achieve and whether it achieves that, or not.
Rarified surroundings aside, this is a fight neither side wants to lose.
The Welsh Government doesn't want to be seen to have messed up the drafting of its very first attempt at making a Welsh law from scratch. That would be both embarrassing and humiliating. But then neither does the UK Government want to be seen in the highest court in the land to have tried - just that little bit too hard - to slap down the first Welsh law.
Either way, you suspect a small but indelible mark will be left - on the respect agenda.