|
Government of Wales Act 1998 Schedule
8:
Judicial Precedent and the Constitutional Status of
Wales
"I think the devolution arrangements
in Wales are fragile and I think very vulnerable if
there were a change in political party governing in
either capital…the ship of devolution has had
a very easy launch … [but some] government lawyers
would actually quite like a bit of … a test case,
before the Privy Council… just to make sure that
the lifeboats work…"1
Schedule 8 of the Government of Wales
Act2 1998’s lays down the ground rules for the
adjudication of devolution issues. These are four-fold:
one, whether the function is exercisable by the Assembly3; two, is the use of that function permitted4; three, its failure to comply with its duties5; and four, questions of compatibility of actions
with the European Convention on Human Rights.6 Any court can determine "devolution issues"7 in the Anglo-Welsh judicial system8 and the highest court of appeal for such matters
is the Judicial Committee of the Privy Council.9 Although the House of Lords has the right to refuse
appeal to the Privy Council10, the Assembly or the Attorney General has the
ability to make a direct reference to the Judicial Committee
of the Privy Council on a devolution issue.11
Imperative when assessing the judicial
attitude to the constitutional position of Wales will
be the Judicial Committee of the Privy Council.12 The Council members are appointed for life, the Judicial
Committee is but one of its branches and it is constituted
of the most senior figures of the judiciary.13 The Committee remains the highest court of appeal
for some former UK colonies.14 It considers approximately 70 cases per year
most of which concern those countries. However, the
devolution Acts of 1998 rejuvenated it to some extent15, making it the highest court of appeal for any
devolution issue raised in judicial proceedings.16
Why was Judicial Committee given this
devolution role? Rawlings contends that it was done
to address ‘Scottish sensitivities’ and ‘to
establish a common pattern of jurisdiction in devolution
issues’.17 Rawlings fails to add to this reasoning the
rather dry pragmatic consideration of not wishing to
place too much of a burden on the Lords.18 It is partly because of the lack of rationale
lying behind the provisions of Schedule 8 that it is
the contention of this discourse that the judicial tradition
of England and inadequate provisions of the Act leave
the National Assembly in constitutional limbo. The Judicial
Committee is there to introduce certainty into Westminster-Assembly
relations; it fails in that task.
Academic Opinion
So is the constitutional position of
Wales open to question? Craig and Walters19 seem to conclude that it is not:
‘In so far as courts are required
to rule upon the validity of subordinate legislation
enacted by the Assembly, they will do so on relatively
familiar ground, since they are accustomed to reviewing
secondary legislation.’20
This study rejects that assertion for
four reasons. Firstly, Henry VIII clauses21, included in the devolution settlement, are
not familiar ground for the judiciary as they ‘blur
the distinction between legislative and executive devolution’22, a point eloquently supported by Geoffrey Bowman,
First Parliamentary Counsel, when referring to such
clauses:
‘Suppose that the Assembly is
given power to make legislation prescribing a curriculum
for secondary education, and supposing there is no
general power for the Assembly to legislate in relation
to people with special needs, and then suppose that
the Assembly wants to legislate in relation to secondary
education generally, including the education of people
with special needs. The question is, does it have
that power or does it not? … you are never quite
sure whether, and to what extent, the power has been
exceeded, and therefore that the legislation can be
struck down by the courts.’23
In other words, he is saying that Craig
and Walters are wrong in their belief that the judiciary
are on terra firma when considering the validity
of such sub-ordinate legislation; in fact there is much
ambiguity.
Secondly, the greater use of such clauses24 that could follow the Richards’ Commission
review of National Assembly powers and the Lords’
Constitution Committee25 reports, threatens to exacerbate that problem.
The use of such ‘permissive clauses’ has been
endorsed by the Assembly Review of Procedure, which
adopted Richard Rawlings’ ‘Set of Devolution
Principles’.26 His devolution Principle 6 suggests that it
should be permissible for the Assembly to be given powers
to amend or repeal primary legislation (also known as
Henry VIII powers) provided that the particular powers
are justified for the purpose of the effective implementation
of the relevant policy. The Presiding Officer, who supports
such a view, explained the proposed development in this
way:
‘I think that the next Assembly
should start making proper legislation, not just sub-ordinate
legislation, because we can do that under the Government
of Wales Act. We need permissive clauses in legislation
and the obvious ones are education and perhaps health.’27
So, it is this study’s submission
that in a surreptitious attempt to enhance Assembly
competence, the crachach28 will endanger the foundations of the institution
they seek to fortify.
Thirdly, the continued legislative role
of Westminster over devolved affairs29 means that there has been a reneging on the
promised social compact contained in the White Paper
A Voice for Wales that ‘The Assembly will
help create the body of law that governs Wales. The
basic framework of the law is set in Acts of Parliament
– primary legislation – within which Secretaries
of State make rules and regulations in secondary legislation
… The government proposes that in Wales the Assembly
will assume these powers to make secondary legislation.’30 This has not happened. The Local Government
Act 2000, illustrates the problem,31 rule making powers, which according to the aforementioned
proposal in the White Paper should be devolved to the
Assembly, stay in UK Ministers’ hands.32 Westminster legislates with impunity over Welsh
affairs. Thus, it would be perverse to describe the
constitutional position as settled.
Fourthly, the judiciary’s attitude
to home rule for the colonies33 also goes against the grain of Craig and Walters.
In particular, as will be demonstrated, nationhood can
‘plant a tree capable of growth’. The GOWA
could become a statute that is interpreted as a constitution,
in tune with the political spirit of the time, inconsistent
with text of 1998.
So, in short the Welsh situation is not
as simple as Craig and Walters make it appear. The GOWA
and the Transfer of Functions Order34 created, for many, an unhappy settlement, where
Assembly capabilities are only to be found by referring
to over 300 different Acts of Parliament. The answer
to that limited and unclear settlement for some is to
make greater use of permissive of Henry VIII clauses
in Westminster legislation, allowing Wales to ‘go
it alone’. This study suggests that such a trend
would simply replace one uncertainty with another, a
point outlined by Mr Geoffrey Bowman below.
By way of testing this hypothesis, I
intend to deal in turn with the four factors Craig and
Walters35 contend will determine how the courts will resolve
devolution questions: the ‘look’ of the statute;
the manner in which power is divided; the degree to
which power is divided; and the way the judiciary classify
the subject matters of legislation. Within that structure
this discourse will consider the judicial treatment
of the following sub-parliaments: the Northern Ireland
Parliament of 1920 –7336; the other devolved institutions in the UK37; and the Dominions and Commonwealth countries.38
The Look: Ordinary or Extraordinary?
Craig and Walters39 contend that the form or ‘look’ of
the statute of the GOWA will determine whether it is
interpreted as a constitution or an ‘ordinary’
UK statute. Even in the UK, ‘constitutional’
statutes have been interpreted contrary to Westminster’s
initial intent; whilst ‘ordinary’ statutes
are interpreted according to the traditional English
or ‘global’ method.40
The significance of constitutional, as
opposed to traditional, interpretation is clear from
the judicial approach to the British North America Act41 1867, which by 1930 had been deemed a ‘constitution’
by Lord Sankey42 a departure from the initial opinion that it
would be treated to the ‘same methods of construction’
as ordinary English statutes.43
The theory is that the more the statute
looks like a constitution the more likely it is to be
given a wide and flexible interpretation. For example,
in Edwards v. Attorney-General for Canada44 feminists sought to challenge the Canadian Supreme
Court’s conclusion that the constitution of Canada
precluded women from becoming senators. But the Privy
Council did not shrink from setting aside a unanimous
judgement of the Supreme Court for Canada, stating that
women were eligible to be summoned to and become members
of the Senate of Canada. Lord Sankey noted in his judgement
that:
‘The British North America Act
planted in Canada a living tree capable of growth
and expansion within its natural limits. The object
of the Act was to grant a Constitution to Canada.’45
Statutes read as a constitution, it is
further contended, almost take on the form of fundamental
law. Calvert argues forcibly that there exists a class
of UK statute that has superior constitutional status
to the ordinary law and cannot be repealed without special
procedure.46 A fact acknowledged Lord Denning MR in Blackburn
v. Attorney-General:47
‘… in legal theory, one Parliament
cannot bind another, and … no Act is irreversible.
But legal theory does not always march alongside political
reality … Take the Acts which have granted independence
to the Dominions … Can anyone imagine that Parliament
could or would reverse those laws and take away their
independence? Most clearly not. Freedom once given
cannot be taken away.’ (my italics)
As Lord Denning’s acknowledged,
s.4 Statute of Westminster merely codified the existing
common law, which acknowledged the principle that Parliament
should not legislate for a colony without its consent
before they were ‘given’ independence.48 As Sir Robert Megarry VC noted in Manuel
v Attorney-General:49
‘By 1926 it had become recognised
as a clear constitutional convention that the United
Kingdom Parliament would not legislate for a Dominion
without the consent of that Dominion. That convention
was given the force of law by the Statute of Westminster.’50
In terms of UK domestic precedent, Calvert51 argues that Lord Cooper’s comments in MacCormick
v Lord Advocate52 provide some support to his assertion that it
is only an English interpretation of the UK constitution
that assumes ‘absolute’ parliamentary sovereignty:53
‘the Treaty [of union]… contain[s]
some clauses which … emphatically exclude subsequent
alteration by declarations that the provision shall
be fundamental … I have never been able to understand
how it is possible to reconcile with elementary canons
of construction the adoption by the English constitutional
theorists of the same attitude to these markedly different
types of provisions.’54
So could the GOWA be read as a constitution
and thereby draw on colonial precedent that affords
more protection to the devolved body on vires
questions? One might argue that Schedule 8 itself should
place greater emphasis on the constitutional precedent
of the Judicial Committee than ordinary statutory interpretation
methods. A point referred to by the then Under-secretary
of State at the Welsh Office, Win Griffiths: ‘[As]
The Judicial Committee acts now as the final constitutional
court of appeal for various Commonwealth dependencies
and colonies … we thought it appropriate to use
its experience of handling cases that raise constitutional
issues.’55
However, Craig and Walters note three
counts against the GOWA being interpreted as a constitution.
Firstly, the primary aim of the GOWA was to keep Wales
within the UK, whilst with the colonies the attempt
was to start to give freedom away. The explicit aim
of the GOWA was: "A directly-elected Assembly, firmly
embedded in the United Kingdom".56 However, the Government of Ireland Act57 1920 was also a ‘centripetal rather than
a centrifugal’ devolution of powers – designed
to secure Northern Ireland’s place in the UK. The
Ireland Act 1949 illustrates the point: ‘Northern
Ireland remains part … of the United Kingdom and
… in no event will [it] … cease to part of
… the United Kingdom without consent of the Parliament
of Northern Ireland"58 - a fact that did not prevent the Northern Ireland
and English judiciary drawing on colonial precedent.
Secondly, the powers listed in s.91 and
92 of the BNA and s.51 of the Australian Constitution
are general and constitution-like, whilst the GOWA is
very different in nature. As Rawlings notes the devolved
powers of the Assembly are detailed by dense text in
the Transfer of Functions Order59, which ‘represents a detailed trawl through
some 300 Acts of Parliament, itemizing precisely which
functions, some major, many minor’60 – hardly a constitution, with vague and
broad delegations of functions. This is perhaps the
strongest argument for not affording the National Assembly’s
Henry VIII powers the same degree of judicial protection
as the colonies.
Thirdly, it is argued that an Act is
more constitution-like the more difficult it is to amend.
But the GOWA has already been amended; the Government
Resources and Accounts Act 2000 amended it directly
by inserting further provisions about the Assembly's
finances. Contradistinguish that with the Scottish Sewel
convention61, which restricts the UK parliament legislating
over devolved affairs without the consent of the Scots.
Clearly this does not apply in Wales, where Westminster
continues to legislate in devolved areas bill after
bill62, there is no constitutional protection for the
secondary legislative issues over which it seemed the
population of Wales had consented to be devolved.63 In fact, Rawlings describes a situation in which
each Westminster bill infringes on even the secondary
legislative areas devolved to the Assembly, some affording
the Assembly secondary legislative scope over the devolved
areas64, other statutes severely restricting it.65 Clearly the notion that the GOWA is a part of
the fundamental law of the UK constitution is incompatible
with the situation in which Westminster continues to
legislate unfettered in Welsh ‘devolved’ areas.
Driving a nail in the coffin of the contention that
Wales’ constitutional status is by any means certain.
Division of Power: Manner and
Degree
Regardless of the fact that the GOWA
could not be regarded as constitution-like in form,
Craig and Walters argue that another factor66 determines whether the ‘constitutional’
or ‘normal’ method is used: whether the Act
uses the single or double enumeration model to divide
power between the centre and the ‘province(s)’.
The GOWA uses the single enumeration model, in other
words it only lists the functions of the devolved body.67 National Assembly powers are listed68, whilst the Westminster’s reserved functions
are left unlisted.69 It is argued that a focus on the powers of the
Assembly means that they are given a relatively broad
reading, especially given the fact that supreme law-making
authority is retained in Westminster. This supposition
will be tested by reference to the case law to be examined
under the heading ‘classifying subject matters’,
below.
In terms of the degree to which power
is devolved, Wales was conferred only limited powers
under the settlement. The powers devolved were restricted
to a very lengthy list contained in the transfer of
functions order, plus the Henry VIII powers of ss.27-28
of GOWA enabling the Assembly to re-structure the quasi-autonomous
non-governmental organisations, such as the WDA. There
are two things to add as regards the attitude of the
judiciary to these powers.
In terms of the ordinary secondary legislative
powers, there is Commonwealth precedent to suggest that
the typical English principles of judicial review would
not apply to provincial legislatures. Principles outlined
by, inter alia, the Wednesbury70 and GCHQ cases.71 The first and obvious objection to an assertion
that the National Assembly be open to the same principles
of judicial scrutiny as a county council is that the
Assembly is more akin to the UK Parliament, which, despite
theoretically being open to a challenge of irrationality72, has never been successfully challenged on those
grounds. Secondly, there is Commonwealth precedent to
suggest that devolved legislatures’ byelaws could
not be subject to those traditional grounds of judicial
review. For example73, in Singh’s case74, a property owner in the Indian province of
Oudh was subjected to legislation within the competence
of the Provincial legislature under Schedule 7, Government
of India Act 1935, which reduced his proprietary rights
as conferred by the Crown. Before the Privy Council,
he claimed this was ultra vires the Provincial
legislature. Lord Wright clearly stated that:
‘No court can annul the enactment
of a legislative body acting within the legitimate
scope of its sovereign competence.’75
Despite Craig and Walters' assertion
that the English judiciary are well-versed in questions
of judicial review of secondary legislation, they are
not au fait with questions of judicial review
of the secondary legislation of sovereign legislatures.
As regards the Henry VIII clauses, the
subject of the main contention of this discourse, the
position is even less clear. There have been a number
of articles and judicial comment criticising the use
of such clauses, as they risk the executive usurping
the legislative role of the UK Parliament. As Lord Rippon
has noted76 for most of the 20th century legislators
have sought to severely constrain their use77, of course we must bear in mind that the law
lords are legislators themselves. However, jurisprudentially
judges have little real power to nullify them in the
Westminster context, as demonstrated by Thorburn
v Sunderland CC.78 So, it seems outwith the judiciary’s
remit to question Henry VIII clauses on Wednesbury
grounds – although it cannot be ruled out in theory.
However, the use of Henry VIII clauses within legislation
that incidentally affects upon matters that are outside
the purpose of an Act, as per the example outlined by
Mr Geoffrey Bowman above, are grey areas. How will the
judiciary deal with such grey areas? Well, there is
a strong line of Northern Ireland and colonial precedent,
from which the judiciary can draw.
Classifying Subject Matters
Any division of legislative authority
will raise issues to resolve. The way in which the judiciary
has dealt with these questions is to classify the subject
matters of the legislation of sub-parliaments, in difficult
situations where there are two or more matters with
which a piece of legislation seeks to deal – one
of which is a provincial matter, the other a federal
one.
With this in mind, Hogg79 asks: What is the matter of the law? Canadian
jurisprudence developed the ‘pith and substance’
doctrine as the answer. For example, in Bank of Toronto
v Lambe80 the Privy Council had to consider whether a
tax on banking was outwith the power of the province
- taxing being a provincial responsibility and the regulation
of banking a federal one. They held that although banking
regulation was the federal parliament’s responsibility,
because the ‘pith and substance’ of the legislation
was taxation, a provincial matter, the legislation was
valid.
Calvert81 suggests that Lord Atkin made a very important
determination in Gallagher v Lynn82 to adopt, inter alia, the Canadian ‘pith
and substance’ doctrine for Northern Ireland. It
says that when determining how to classify the subject
matter: ‘as long as the predominant aspect of the
contested measure is within the legislative competence
of the institution’, then it is valid. The other
side of that test is the colourability doctrine: legislation
is invalid if it purports to deal with a certain intra
vires subject matter, but in fact or effect strays
into an excluded matter. These are both dicta that could
be used to determine the validity of legislation in
Wales enacted under Henry VIII provisions.
The case of Gallagher v Lynn83 concerned the Milk and Milk Products (Northern
Ireland) Act 1934, which prohibited the sale of milk
that had been produced without a licence from the Northern
Ireland authorities. Gallagher was a dairy farmer in
the county of Donegal in what is now the Republic of
Ireland. Gallagher’s licence was refused by the
Ministry of Agriculture on the ground that licences
under the Act could be granted only to persons whose
dairies where the milk was produced were situate in
Northern Ireland. He subsequently sold milk in Londonderry
without a licence, he was convicted. His counsel argued,
inter alia, that s. 2(2) Milk Act had the effect of
restricting trade in contravention of s.4(7) GIA.84 The House of Lords disagreed. Lord Atkin held
that:
"These questions affecting limitation
on the legislative powers of subordinate parliaments
or the distribution of powers between parliaments
in a federal system are now familiar … in discussion
of the powers of Canadian Parliaments … you are
to look at the … "the pith and substance of the
legislation." If … you find that the substance
of the legislation is within the express powers, then
it is not invalidated if incidentally it affects matters
which are outside the authorized field."85
This supports the contention above that
doctrines of pith and substance and incidental effect,
which come from Canadian jurisprudence86, do apply to Northern Ireland and thus, could
apply to Wales. Furthermore it supports the contention
of Craig and Walters87 that a formula that puts an emphasis on the
powers of the devolved legislature (i.e. first in written
order) will mean a narrower reading of the limitations
and, by implication a broader reading of the devolved
powers.88 The danger for Wales is that the judiciary’s
customary animosity toward Henry VIII or ‘permissive’
clauses will discourage them from applying that jurisprudence
here.
Another case that supports those assertions
in the Northern Ireland context is Belfast Corporation
v OD Cars Ltd.89 It concerned, amongst other things, the question
of whether s. 6(4) of the Planning Act 1944, which restricted
compensation for damages caused by planning restrictions,
was ultra vires in the context of s. 5(1) GIA.90 It was held by the Lords, reversing the NI Court
of Appeal decision, that the restrictions imposed by
these Planning Acts could not be described as a purported
authorisation to "take any property without compensation"
in contravention of section 5 (2) of the Act of 1920.
Counsel for the local authority argued that:
‘To ‘take’ property
means to acquire property. The design was to provide
a constitution for both Southern Ireland and Northern
Ireland and to continue existing laws. The method
was to confer legislative powers on their legislatures
in the widest terms, while indicating certain prohibited
matters’91
Viscount Simonds agreed to adopt a narrow
interpretation of the s.5(2) limitation, which supports
Craig and Walters' view that a single enumeration method
which focuses on powers conferred rather than limitations
means narrow interpretation of the latter. The judge
stated:
‘In the consideration of the constitutional
validity of legislation … of Provincial Parliaments
the expression "pith and substance" came to be commonly
used in order to determine-whether an enactment was
truly within the legislative power of the … Parliament.’92
That case also points to a wider reluctance
amongst the judiciary to declare an Act of that Parliament
unconstitutional:
‘To my mind, it does more justice
to its intent if a restriction which is in substance
a taking, should one ever occur, is attacked ad hoc
as not within the true meaning and scope of [the]
section … than that the whole subsection should
be thrown on the scrap-heap as constitutionally an
outlaw.’93
Such deference may not be shown to Welsh
legislation under the ‘permissive’ clauses
favoured by the Presiding Officer et al. given that
they are an attempt both, to circumvent the restrictions
of the GOWA/Transfer of Functions Order and to extend
a traditionally frowned-upon legislative practice.
The Alberta Bank Taxation Reference94 case shows how the result can be to the
contrary, illustrating that the other related test is
whether an Act is ‘colourable’ i.e. the law
has an effect or purpose beyond the remit of that legislature.95 The case also96 concerned a tax on banking97, but the effect of the measures was to discriminate
in favour of one bank, the Bank of Canada. Thus, the
legislation was valid to the extent that it claimed
to be a tax measure, but in effect ultra vires
as it regulated banking. It should be noted that commentators,
such as Calvert, doubt the relevance of this approach
to constitutions, such as Wales’ that singly enumerate
the powers of the devolved legislature. This is based
on Australian precedent, such as South Australia
v The Commonwealth98, in which the test was held to be as follows:
‘The true nature of a law is to
be ascertained by examining its terms and, speaking
generally, ascertaining what it does in relation to
duties, rights or powers which it creates, abolishes
or regulates … The consequential effects are
irrelevant for this purpose.’99
It is submitted here that colourability
does not really add to the pith and substance test:
it is simply saying that the true nature of the legislation
is outwith the province’s powers – a reapplication
of the pith and substance test. The real question, in
a possible future Welsh context, it is submitted, is
whether restricting the sub-parliament on the grounds
of a consequential effect would overly restrict its
competence in devolved matters.100 Clearly sub-parliaments need breathing room;
otherwise they will be suffocated.
Hogg identifies that behind these logical
tests lies a further principle - the presumption of
constitutionality. Whilst any sub-parliament must only
act within the powers conferred, the provincial legislature’s
Acts are to be presumed valid:
‘any question as to the validity
of provincial legislation is to be approached on the
assumption that it was validly enacted.’101
Hogg describes this as transferring ‘from
the law of evidence the idea that a burden of demonstration
lies upon those who would challenge the validity of
a statute that has emerged from the democratic process.’102 A logic that would also suggest that Assembly
sub-ordinate legislation should not be reviewed on the
same principles as Council of Civil Service Unions
v Minister for the Civil Service.103
A final point to note is that very little
case law emerged from Northern Ireland 1920-73 a pattern
that may well be followed in Wales - a point made forcibly
by Shellens.104 If this situation persists then the
certainty of relations between the political bodies
in Cardiff and London will no doubt suffer. The judiciary
could (and should) clarify the boundaries of authority
and the relationship between the two. None of these
questions will be resolved by silence, the practitioners
of public law in Wales need to take every opportunity
for the judiciary to comment on the constitutional position
of Wales. It should be acknowledged that although Scotland
has not developed clear case law either, there has been
judicial comment105, a step beyond the Welsh silence. Add to this
fact that the judiciary are reluctant to clarify points
of constitutional law, it seems that the status of Wales
will remain uncertain for some time to come.
Conclusion
We have established that there is clear
Commonwealth and Northern Ireland precedent for resolving
the allocation of powers between primary-law making
bodies and that the UK judiciary are familiar with the
interpretation of sub-ordinate legislation. However,
the National Assembly falls, and will increasingly fall,
between these two established fields of jurisprudence.
As noted at the outset, the Assembly already has ‘Henry
VIII’ powers under ss.27-28 of the Act and the
Richard’s Commission is considering proposals to
extend the role of such clauses to some or all of the
devolved areas.106 The judiciary has traditionally narrowly interpreted
these permissive legislative clauses in Westminster
bills.107 This leaves big question marks over the constitutional
position of Wales, which do not seem likely to be settled
in the courts in the near term.
So, how do we clarify the constitutional
position for Wales? Here are a few ideas that could
be considered.108 Perhaps most pressing is the need for new
rules of statutory interpretation. Firstly, there could
be a Welsh version of s.101 of the Scotland Act, which
compels the court to read Acts of that Parliament as
intra vires109, as far as possible.110 In addition, the Scotland Act codifies the
incidental effect rule in Schedule 4, Part I, para.
3, a provision that could be replicated in Wales.
In terms of procedural issues the following
changes could be considered. Firstly measures could
be taken to repatriate the judicial review process with,
as in Scotland, a guaranteed number of Welsh judges.
Also when considering Welsh devolution issues the Judicial
Committee and others could sit in Wales.111 It is also argued that there is scope for
greater use of extra-judicial conflict resolution.112 There is also a need to challenge Welsh legal
practitioners to strengthen the public law specialism
in the country.113
There are also some proposals for changes
at the UK Parliament. It is submitted that there could
be a Welsh version of the Scottish Sewel Convention,
which states that ‘the UK Parliament would not
normally legislate with regard to devolved matters except
with the agreement of the devolved legislature’.114 It would be also worth altering parliamentary
drafting conventions to ensure that permissive or Henry
VIII clauses in Westminster legislation include some
form of reference to Schedule 2 of the GOWA. It is hoped
that these and other changes can clarify the constitutional
position of Wales.
Bibliography
Bradley, A.W., Constitutional and
Administrative Law, 13th ed., Harlow: Longman, 2003
British North America Act 1867 (renamed
the Constitution Act 1867)
Command Paper 3718, A Voice for Wales
– Llais dros Gymru
Craig, P and Walters, M, The Courts,
Devolution and Judicial Review [1999] PL 274
Calvert, H., Constitutional Law in
Northern Ireland: a study in regional government,
London: Stevens, 1968
De Smith, Judicial Control of Administrative
Action, 3rd ed., pp. 329-331
Dicey, A.V., Introduction to the Study
of the Law of the Constitution, 10th
ed. Basingstoke: Macmillan Education, 1959 p.40
Government of Ireland Act 1920
Government of Wales Act 1998
Halsbury’s Laws vol.6 para.820
Hogg, P., Constitutional Law of Canada,
3rd Ed., Carswell: Ontario
House of Lord’s Constitution Committee, Second
Report: Devolution: Inter-Institutional Relations in
the United Kingdom, 16 January 2003
http://www.parliament.the-stationery-office.co.uk/pa/cm200102/cmselect/cmwelaf/uc1242-ii/uc124202.htm
(visited 20 Mar 2003)
http://www.publications.parliament.uk/pa/ld/ldconst.htm
(visited 23 Jan 2003)
Ireland Act 1949
Judicial Committee (Devolution Issues)
Rules Order 1999
Judicial Committee (Powers in Devolution
Cases) Order 1999
Korah, V., Counter-Inflationary Legislation:
Whither Parliamentary Sovereignty? (1976) 92 LQR 42
Rawlings, R., Quasi-Legislative Devolution:
Powers and Principles [2001] Wales Law Journal –
Lord Morris of Borth y Gest Seminars pp.13-39
Reid, S., & Ryder, N., Death of the
Privy Council: Exaggeration or Stated Fact?, (2001)
Commonwealth Judicial Journal, 14 (1), 32-37.
Rippon, Henry VIII clauses (1989)
Stat. Law Rev. 205-206
Scotland Act 1998
Shellens, H., Introduction: The importance
of Public Law Challenges in Wales, [2001] 1 Wales
Law Journal 64
Statute of Westminster 1931
Wheare, K.C., The Constitutional Structure
of the Commonwealth, OUP: London 1960
Whyte, J., How much discrimination
was there under the unionist regime, 1921-68? Contemporary
Irish Studies., http://cain.ulst.ac.uk/issues/discrimination/whyte.htm
Whyte, N., The Northern Ireland House
of Commons 1921-1972., Northern Ireland Social and
Political Archive - http://www.ark.ac.uk/elections/hnihoc.htm
(19th February 2003)
Cases Considered
Anderson v Scottish Ministers [2001]
SLT 1331
Attorney General of Alberta v Attorney
General of Canada [1939] AC 117
Bank of New South Wales v. The Commonwealth
76 CLR 1. 186
Bank of Toronto v Lambe (1887) 12 App. Cas. 575
Belfast Corporation v OD Cars Ltd [1960] AC 490
Blackburn v. Attorney-General [1971] 1 WLR 1037
Boddington v British Transport Police
(1998) 2 WLR 639
Bribery Commission v Attorney-General
[1971] 1 WLR 1037
Bribery Commissioner v Ranasinghe [1965]
AC 172
British Coal Corp v King [1935] AC 500
Council of Civil Service Unions v Minister
for the Civil Service [1985] AC 374
County Council of Londonderry et al v
M’Glade et al (1925) NI 47
Edwards v. Attorney-General for Canada
[1930] AC 124
Gallagher v Lynn [1937] A.C. 863 (HL)
MacCormick v Lord Advocate [1953] S.C.
396
Manuel v Attorney-General [1983] 1 Ch
77
McNeil v. Nova Scotia (Board of Censors)
[1978] 2 SCR 662
R v Big M Drug Mart [1985] 1 SCR 295
R (Hume et al.) v Londonderry Justices
[1972] NILR 91
County Council of Londonderry et al v
M’Glade et al (1925) NI 47
R v London Transport Executive ex parte
Greater London Council (1983) 2 WLR 702
Shannon et al. v Lower Mainland Dairy
Products Board et al. [1938] 4 D.L.R. 81
South Australia v The Commonwealth 65
CLR 373
Thorburn v Sunderland CC (2002) 152 NLJ
312
Ulster Transport Authority v James Brown
& Sons Ltd [1953] NI 79
|
