Return visit to the Supreme Court?

Mick Antoniw AM
Image caption Mick Antoniw AM

Guest post from @TobyMasonBBC - could another Assembly Bill be on the verge of legal trouble?

As expected, the Assembly's business committee has rubber-stamped the Labour AM Mick Antoniw's request to withdraw his Bill to recover the costs of treating asbestos victims from insurers from tomorrow's plenary agenda - see our story from yesterday on it here.

There's something a bit unsettling about the fact that were it not for the postponement, the 60 AMs would have been voting the Bill into law mid-afternoon tomorrow. Instead, it's been yanked from the agenda and is now in limbo - it's up to Mr Antoniw to request a new date for the vote.

As one veteran AM put it back when the Assembly first started passing primary legislation, then called Measures, in the Third Assembly, "we're playing with live ammunition now". Gone are the days where votes were solely on meaningless motions to note this or that (although there are still a fair few of those). Many votes now have real consequences.

In this case, Mr Antoniw, a former solicitor with Thompsons, says there should be a new duty placed on insurers to compensate the NHS in Wales for the cost of treating victims of diseases caused by asbestos. The Bill was introduced to the Assembly on 3rd December 2012, the general principles of the Bill were agreed by the Assembly on March 19th this year. It was examined again in committee on April 24th and was due to be voted into law tomorrow, June 5th. Royal Assent would then have followed, probably before the summer recess. That's a fairly rapid progress through the legislative system, especially for a Bill which has seen concerns raised about whether it is within the powers of the Assembly to pass in the first place.

Incidentally, although the Bill hasn't changed substantially during its passage through the Assembly, the amount of money it's expected to raise has reduced dramatically.

The initial regulatory impact assessment, published in December along with the Bill, suggested that it would raise just over £2m from insurers in 2014-15 and each year thereafter. Last month, a revised assessment was published. According to this, the anticipated cash raised for the NHS in Wales in 2014-15 is now just £871,500, rising slightly in the following years - or less than half the previous estimate. Compare that to the NHS annual budget of £6bn and you see that this Bill isn't exactly a game-changer, financially.

But it's those concerns on whether the Bill is within the scope of the Assembly's powers which is worrying many. The Association of British Insurers are bitterly opposed to it, both in principle and practice. There's an element of "they would say that wouldn't they" given that it's going to cost their members money. The £900,000 or so a year in Wales is a tiny drop in the ocean, but their fear, one would imagine, is that if that money starts flowing in to the Welsh NHS, then the equally cash strapped governments elsewhere in the UK will decide to follow suit - and then the bills would really start racking up.

The ABI have written to the Presiding Officer laying out why they believe that the Assembly would be exceeding its powers if it passed the Bill. The nub of their argument is that although the Bill looks as if it relates to health and health services and the organisation and funding of the NHS - which are all clearly devolved - in reality, significant parts of it actually relate to financial services, including insurance - which are excluded from the devolution settlement. And these are not just incidental to the Bill, they say - they're an integral part of what makes it work.

Moreover, they argue, since the Bill provides for Welsh Ministers to recoup the cost from insurers, rather than the NHS directly, then it could amount to "general tax-raising powers" for the Welsh Government, in the absence of hypothecation.

You'd expect the main lobby group opposed to the Bill to have expensive lawyers crawling all over it. But there is a clear sign that the Presiding Officer and the Assembly Commission aren't exactly comfortable with it either.

In December, as the Bill was first published, the Presiding Officer certified that it was within the scope of the Assembly's powers, as she is required to do for every Bill introduced. However, this time, she took the unprecedented step of writing to the committee scrutinising the Bill to point out that it had been a "finely balanced" judgement - and there were "credible" counter-arguments that parts of it were, in fact, beyond the Assembly's remit. Why do this? Why provide catnip for lawyers looking to convince judges that the Assembly has passed a law which goes beyond its powers and is therefore unlawful?

Despite the Welsh Government's victory in the Supreme Court over the now-notorious Local Government Byelaws Bill last year, there was a lot of head scratching and finger pointing behind the scenes about why the issues raised by the Attorney General in this case weren't even mentioned during the scrutiny process for the Assembly's first Act. It looks to me that the publication of the Presiding Officer's letter is to some extent an insurance policy for Ms Butler if this Bill runs into similar difficulties.

Will it? The ABI are clearly standing by to decide whether to launch a legal challenge once the Bill is passed. There is a precedent in the insurance industry for challenging devolved legislation - the Pleural Plaques case is a good example.

After their defeat on the byelaws Bill, the Wales Office and Attorney General seem to have lost their appetite for legal challenges to Assembly Bills - I stress "seem" there.

Any challenge, of course, would be dependent on the Bill passing the Assembly. Mr Antoniw is determined that it will, and maintains this week's delay is due to "technical difficulties" raised by the Wales Office in relation to the operation of the Bill - and nothing to do with the legal concerns expressed by the Presiding Officer back in December, or the ABI currently. He'll look to get a vote on it to become law before the summer recess - but I suspect this last minute delay will cause many AMs to look more closely at it if and when it comes before them in the coming weeks.