Through the legal looking glass?


@TobyMasonBBC here with a look at the latest devolved constitutional conundrum coming our way this afternoon.

In another post just under a month ago I speculated whether Mick Antoniw's Asbestos Bill could well be heading for the Supreme Court to decide whether it's lawful.

This afternoon, AMs will be asked whether another Bill - this one close to a racing certainty to face a challenge - should be allowed to be rushed through the Assembly in just three weeks, the first time such a process will have been used.

The Agricultural Sector (Wales) Bill hasn't been formally published yet - but it's aimed at replacing the functions of the now-defunct Agricultural Wages Board for England and Wales. The role of the AWB was to set the wages and conditions of agricultural workers - their current provisions run out this October. You can read the background from last week when the Emergency Bill was first mooted here.

The Welsh Government's argument is that in order to preserve uninterrupted the wages and conditions of the estimated 13,000 workers in Wales who are covered, they need the law changed before the summer recess - hence the truncated lawmaking process. The Bill would effectively give Welsh ministers the powers to set those wages and conditions.

It's called the Agriculture Bill. The National Assembly has powers over agriculture - so what's the problem?

Lots. Because it's a very open question indeed as to whether this bill is about agriculture, or instead actually about employment - which isn't devolved.

As the Presiding Officer puts it in her note to AMs ahead of this afternoon's vote:

The issue is therefore what is the purpose of the Bill? Is it to ensure a successful agricultural sector, or to safeguard the wages and conditions of agricultural workers?

She makes it clear that she is still considering whether to rule the Bill within competence. And reading her note, it's clear that the Assembly Commission have at least equal concerns about the legality of this legislation as they have about the Asbestos Bill.

If the Assembly votes in favour of the emergency legislative process later then, as with all Bills introduced, the Presiding Officer, as head of the Commission will need to certify the Bill as being within the Assembly's powers by next Tuesday.

The odds are she probably will - but with public caveats, as with the Asbestos Bill.

What if the Presiding Officer declines to certify the Bill as being within scope? My reading of the Government of Wales Act suggests it could still continue its progress through the Assembly if the government can muster a majority at each stage. But we'd surely be through the looking glass in which case? How would Rosemary Butler phrase it in the chamber? "I now call on the Minister to propose the Bill...which incidentally I don't believe to be legal...but anyway, Minister..."

Incidentally, it's a happy coincidence that for the next three weeks at least, the Welsh Government has a one seat majority in the Assembly due to Ieuan Wyn Jones' resignation as the AM for Ynys Mon, with the byelection due to be held a couple of weeks after the end of the Assembly's summer term.

The UK Government maintains that the AWB was, and is, an employment, not an agriculture issue and not devolved - therefore it's highly likely the Attorney General would exercise his constitutional prerogative to refer it to the Supreme Court if and when it's passed. The Welsh Government are equally clear that it does come within the Assembly's powers.

Another legal tussle in front of the highest court in the land wouldn't be a particularly welcome development for either side. On the other hand, with the Welsh Government pushing hard for a change from the current conferred powers model to one of reserved powers, as in Scotland and Northern Ireland, and the Secretary of State having voiced his opposition to such a move last week, perhaps Welsh ministers wouldn't be too distraught to have another high profile legal wrangle in the headlines.

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  • rate this

    Comment number 17.

    If it was not so serious you would wonder what they are upto at WG offering a measly 5,000 training spaces in workless households, it is a start but a lot more needs to be done.

    There are 375,000 workless households in Wales, 33% of children are deemed to be from poor households gone up in last few years from 31%.

    To give project to failed Communities First groups is not a confidence boost.

  • rate this

    Comment number 16.

    6 Mab - you make about as much sense as does the WA - which is to say no sense at all.

    The WA has know about the abolition of the Agricultural Wages Board for over 12 months. Its main function the settling of agricultural wages has been overtaken with the introduction of the Minimum Wage. If the WA are really concerned why have they taken so long to act?

  • rate this

    Comment number 15.

    Your paranoia is now becoming too predictable. Firstly ensuring that legislation is within the law is what our government should be doing but appear to be ignorant of the fact. Secondly everyone is missing the point that this is something that should have been looked at earlier. There is little point rushing through legislation that will fall at the first hurdle.

  • rate this

    Comment number 14.

    Opt out voted through.....

    At last something the WAG has done that we can be proud of and support. Lets hope its implemented correctly and is up and running by 2015.

  • rate this

    Comment number 13.

    #10 "Why does Plaid Cymru not get to exercise a vote on behalf of the PC seat " ??
    The simplest reason is that the constitutional position (or fairy tale) is that the electors elect an individual to represent them in the constituency, and the constitution really doesn't ackowledge political parties.
    If a member resigns mid-term, his voters are unrepresented. They tend to resent this.

  • rate this

    Comment number 12.

    ... Agricultural Wages Board for England and Wales :

    .. is an independent body with a statutory obligation to fix minimum wages for workers employed in agriculture in England and Wales. The Board also has discretionary powers to decide other terms and conditions of employment, e.g. holidays and sick pay. It produces a legally binding Order which is enforced by Defra.

    Definitely employment.

  • rate this

    Comment number 11.

    This is most definately about agriculture.
    The Wales Agriculture board is about far more than wages!

  • rate this

    Comment number 10.

    What scrutiny is possible on 'Emergency legislation' rushed through in 3 weeks? What if something even more contentious was 'rushed through'? Why does Plaid Cymru not get to exercise a vote on behalf of the PC seat Ieuan Wyn Jones vacated when he went to his self created job (perhaps using his self sponsored airline)?; the vacancy should not be to the governments advantage! Is this democratic?

  • rate this

    Comment number 9.

    about time WG did something useful!. The AWB's should NOT be abolished. Not even Maggie went through with it. There is a very interesting reason as to why HMG is doing this, a story in the public domain but which I won't repeat on here.

  • rate this

    Comment number 8.

    #1 the reserved powers model would mean the opposite to what we have now in that the UK govt would have a defined list that is reserved e.g. defence, benefits, foreign policy, amongst some that are reserved under the Scotland Act
    anything else the NAfW would be able to legislate on, it does seem they have these spats in Scotland.

  • rate this

    Comment number 7.

    #6 Who's money do you think WAG will be using to defend their position?

    What we need is clear defined positions on what is or not lawful this piecemeal approach does nothing to endear anyone to either government.

    It seems the GOWA schedule is not as robust as put forward by Labour and Conservatives probably deliberately, a lot of barristers and chambers represented in either government.

  • rate this

    Comment number 6.

    No doubt the Welsh Office edifice & Westminster Lawyers will use Tax payers money ultimately failing again to stop legal Welsh Government Legislation as they did with others especially the upcoming Donor opt out Law and the local Bi-laws previously. This is the very reason why we should have full control instead of these Westminster monoliths attempting to scupper our Democracy time after time.

  • rate this

    Comment number 5.

    The Welsh Government has been complicit in the stagnation and eroding of the pay of over 150,000 local Government workers over the last 5 years but want to rush through (contested) legislation on 13,000 agricultural workers. the majority of whom have long term contracts which will continue after October 13.
    There are 470,000 school children in Wales who would like to see some speedy action.

  • rate this

    Comment number 4.

    Do they not revert to the Minimum Wage Act 1998, AWB is the only pay board left after every other one was abolished in 90's. will WAG bring back the Linen and Cotton Handkerchief and Household Goods and Linen Piece Goods Wages Council (GB).

    Labour (UK) own arguments suggest that the most losses in pay are by EU migrant/seasonal workers on short term contracts. (s) Hansard debate on April 24.

  • rate this

    Comment number 3.

    If this is about employment and not agriculture why were the big landowners the major lobbyist behind the removal of this Board? Answer: because it is about agriculture, agricultural wages, now they can be 'depressed' to improve profit margins. Let the Supreme Court pick the bones out of that.
    Also in the news is Caerphilly council. Hmm. This puts that Labour standing ovation in the spotlight!

  • rate this

    Comment number 2.

    Firstly why is this being rushed through as it has been known about for a very long time. What are our masters doing waiting until the eleventh hour to put this before the house. Just one more example of how useless they are. Secondly the legislation will be thrown out if/when challenged in court, fact.

    So please lets elect people who can and want to do the job and not the numpties we have!

  • rate this

    Comment number 1.

    Could you (BP) explain how a reserved powers system would help deal with issues that overlap areas that are deferred (or reserved) and those that are not. It sounds like book-keeping. Whether you run with credits (with loans as negative) or vice versa, the balance should come out the same.



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