Laws and sledgehammers

Tweet Much of the discussion around the decision of the UK Attorney General to take the Welsh Government to the Supreme Court has centred on the process rather than the substance.  A good argument is better than a detailed legal analysis any day.

Insofar as I understand the substance of the complaint, the accusation is that in removing the need for council byelaws to be approved by Welsh Ministers, the Assembly Act has also removed, or attempted to remove, the need for approval by the Secretary of State who, under the labyrinthine nature of the Welsh devolution settlement, exercises such responsibility jointly with Welsh Ministers.  Or rather, she has the right to exercise it jointly; in practice, the process has been that the SoS leaves Welsh Ministers to get on with it.

Now I’m no lawyer, but it was well-understood, I thought, that one of the constraints on the right of the Assembly to legislate was that they could neither take away from, nor add to, the responsibilities of UK Ministers.  If that’s really what the dispute comes down to, then I’d tip the UK Government to win.  And if the Welsh Government really were told this in advance, then they have no excuse for ploughing ahead and ignoring the advice.

Being right on the point of law is, however, no substitute for being right on the politics of the issue, and that’s where things get a little cloudier.  In essence the Attorney General is launching a case in the Supreme Court to protect the right of the SoS to do something which she seems to have had no inclination to do to date.

Worse still, the Welsh Government’s Act is very much in line with the policy of the UK Government, which is to take Ministers out of the loop, and allow local authorities to get on with the job as they see fit, with, in the Minister's own words, "no ministerial involvement whatsoever".  So not only is the Attorney General trying to protect the right of the SoS to do something that she doesn’t seem to want to do, it’s also something which UK Government policy says she really shouldn’t be doing anyway.

In the circumstances, launching a Supreme Court action seems more than a little OTT.  Would it not have been better to simply legislate in London to give effect to the aims of the Assembly Act and thereby implement UK Government policy at the same time?  As it is, it rather looks as though both sides are taking positions for the sake of it.  Still, with the summer upon us, the media need some good stories.  And what better for the silly season than some silly politicians?