SCECLB42 - P Thomas Glyn Watkin KC
SENEDD CYMRU
REFORM BILL COMMITTEE
INQUIRY INTO THE SENEDD CYMRU (ELECTORAL CANDIDATES LIST) BILL
Legislative Competence
Written Evidence from Professor Thomas Glyn Watkin KC
(hc)
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I am grateful to the Committee for the invitation to make a written
submission in relation to this inquiry. Unless otherwise stated,
the opinions expressed in this paper are entirely my own and do not
represent the views of any body or institution with which I am or
have been associated.
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I have no personal or professional interest in the matter under
inquiry.
The Bill
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The long title of the bill states that it is a bill “to make
provision about the proportion and placement of women on lists of
candidates to be Members of the Senedd; and for connected
purposes”. The Member in Charge of the Bill, Jane Hutt MS,
has, as required by statute, stated on introducing the bill that in
her view the provisions of the bill are within the legislative
competence of the Senedd. The Llywydd, as also required by statute,
has stated her decision that the bill is not within the
Senedd’s legislative competence. She has also given reasons
for her decision. She believes that the Bill relates to a reserved
matter, equal opportunities, and that it also modifies the law on
reserved matters, namely section 104 of the Equality Act 2010.
The Legislative Competence of the Senedd
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Senedd Cymru’s powers to make legislation are limited by its
legislative competence as set out in section 108A of the Government
of Wales Act 2006 as amended. Among the limitations set out in that
section is that in relation to the legislation’s
subject-matter. Section 108A(2) provides that:
“A provision is outside that competence so far as… it
relates to reserved matters”,
and
“so far as … it breaches any of the restrictions in
Part 1 of Schedule 7B… ”.
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The issue of equal opportunities raised by the Llywydd concerns the
former of those limitations; the issue of modifying the law on
reserved matters concerns the latter.
Reserved Matters
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The matters which are reserved to the UK Parliament and therefore
outside the legislative competence of the Senedd are listed in
Parts 1 and 2 of Schedule 7A to the 2006 Act as amended. Part 1
lists broad areas of the law which are generally outside of
competence. Part 2 lists matters which, while falling within areas
of the law which are generally devolved, are nevertheless outside
of competence. These latter are termed ‘specific
reservations’.
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On receipt of the Committee’s invitation to submit written
evidence, I studied the bill prior to reading the reasons for the
Llywydd’s decision. In so doing, I identified two specific
reservations which could potentially pose problems of competence
for the bill’s provisions. These were N1 Equal
Opportunities – the matter identified by the Llywydd
– and L13 Gender Recognition. I shall postpone
consideration of the latter until I have considered the issues
raised by the Llywydd.
Questions of competence
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Section 108A also sets out the test which is to be used to
determine whether provisions relate to a reserved matter. 108A(6)
provides that:
The question
whether a provision of an Act of
the Senedd relates to a
reserved matter is determined by reference to the purpose of the
provision, having regard (among other things) to its effect in all
the circumstances.
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This is sometimes referred to as
‘the purpose and effect test’, although it is clear
from the wording that it is the purpose which is central to the
determination, the effect being one thing, amongst others, to which
regard must be had.
N1 Equal
Opportunities
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The meaning of ‘equal opportunities’ as a reserved
matter is given in the Interpretation provision within
paragraph 187 of Schedule 7A, Part 2. The relevant portion
reads:
“Equal
opportunities” means the prevention, elimination or
regulation of discrimination between persons on grounds of
sex…
but the paragraph contains Exceptions, so that it does not
place outside of competence
The
encouragement (other than by prohibition or regulation) of equal
opportunities, and in particular of the observance of the equal
opportunity requirements.
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The bill’s provisions will,
therefore, be outside of competence if their purpose,
having regard (among other things) to
their effect in all the circumstances, relate to the
prevention, elimination or regulation of discrimination between
persons on grounds of sex, or the encouragement of equal
opportunities by prohibition or regulation.
The
Purpose of the Bill and its Provisions
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The Explanatory Memorandum which accompanies the Bill states that
the Bill is part of a package of reforms “for the purpose of
making the Senedd a more effective legislature that is better able
to serve the people of Wales” (¶ 10). That this is the
Bill’s purpose was also emphasized by the Member in Charge
during her oral evidence session with the Committee. The EM draws
attention to evidence which indicates that “More
gender-balanced representation is shown to strengthen the
legitimacy of legislatures” (¶ 43). It is clearly
arguable that the bill’s purpose is to achieve a gender
balance within the Senedd which reflects that within the Welsh
population, rather than preventing, eliminating or regulating
discrimination. The word discrimination here has a negative
sense – of unfair discrimination – otherwise it would
not be sought to prevent or eliminate it. As the word
regulating follows preventing and eliminating,
it too refers to discrimination in that negative sense. That is not
the bill’s purpose.
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Looked at from that perspective, the bill does not appear to have
as its purpose the encouragement of equal opportunities, albeit
such encouragement – provided it is not by prohibition or
regulation – is not outside of competence. Various passages
in the EM recognize that greater gender balance in the legislature
may result in women taking a greater interest in politics (¶
43), with women in positions of political leadership serving as
role models encouraging involvement by example (¶¶
44–48).
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Such encouragement is therefore foreseen by the EM as a likely and
desirable consequence of the bill’s provisions. Even,
therefore, if such consequences are not among the purposes of the
bill, the question arises as to whether they are an effect of the
bill, or one of the ‘other things’ to which regard must
be had in all the circumstances when determining whether or not it
relates to the reserved matter of equal opportunities.
Purposes, effects, outcomes and consequences
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The provisions of this bill raise difficult questions about the
exact meaning of the terms used in section 108A(6). While the
meaning of purpose may be generally clear, the same cannot
be said for effect or the other things referred to in
the test. All are likely to be consequences of the bill being
passed, but they must be more than mere consequences. Consideration
of whether the provisions of this bill are within competence may
require resolution of some of these interpretative
difficulties.
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In preparing this written evidence, I have found it necessary to
attempt an analysis of the use of these terms to clarify my
thinking. Others may disagree with the analysis I have used, but I
have found analysis necessary.
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I take the purposes of a provision to be the outcomes which it
intends to bring about and wishes to be brought about.
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I would distinguish these from a provision’s effect, which I
would characterize as the outcomes which a provision brings about
even though not the main outcome intended or desired to be brought
about by the enactment. I am giving effect the narrow
meaning of something done, effected, by the provision.
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Purposes and effects are therefore both outcomes which are brought
about by the provision being enacted. They are distinguishable from
other consequences which may follow from the legislation but which
are not specifically brought about by it.
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This leaves the question of what are the ‘other things’
which must be considered.
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Not all consequences are foreseeable. It is a recognized, if
unfortunate, fact that legislative proposals sometimes have
unforeseen consequences, albeit that rigorous policy development
should reduce these to a minimum by seeking to eliminate them.
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Among consequences which are foreseeable, some will not be
desirable and may therefore be eliminated or mitigated by express
provision in a bill. Their elimination or mitigation will then form
part of the bill’s purpose. They are sufficiently closely
connected to the bill to be controlled by it. If they are allowed
therefore to occur, their occurrence can be viewed as a matter of
choice by the legislator, and they can rightly be regarded as
things to which regard should be had when considering questions of
competence even though they are neither purposes nor effects of the
provisions.
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Other foreseeable consequences, however, may not be capable of
elimination or mitigation by the bill’s provisions. That the
circumstances brought about by the bill’s enactment may lead
to those consequences is not something that can be controlled by
the bill’s provisions. Such consequences I regard as being
too loosely connected with the bill to be controlled by it, and
such consequences should not therefore be things to which regard
should be had when considering questions of competence. They are
not fairly and realistically connected with the bill’s
provisions.
Do the provisions relate to Equal Opportunities?
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As the Llywydd observes in her statement regarding the bill’s
not being within competence, “Ultimately… the question
of whether any Senedd Bill is within the legislative competence of
the Senedd can only be definitively answered by the Supreme
Court”. In this particular case, the distinctions are so fine
that it would be a brave soul who would confidently predict the
outcome of such a determination.
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My own view, for what it may be worth, is that the purpose of the
bill is not to prevent, eliminate or regulate discrimination
between persons on grounds of sex but rather to produce a Senedd
membership which better reflects in terms of gender balance the
population of Wales. While it is foreseen and desired that a
consequence of the bill may be to encourage equal opportunities for
women in the field of political activity, this is not a purpose of
the bill. However, the bill’s provisions will bring about
greater equality in the number of men and women on
candidates’ lists, and this in turn may encourage greater
equality of opportunity in the field of politics. The question
therefore is whether this encouragement is either an effect of the
bill or one of the other things to which regard may be had in
competence determinations.
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I am persuaded that is neither. It is not an effect of the bill, in
the narrow sense in which I am using the term, because it is not
brought about by the bill’s provisions, but may follow from
the circumstances produced by the bill’s enactment.
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It is therefore a consequence of the bill, but the question yet
remains whether it is too loose a consequence to take the bill
outside of competence. In my view it is. My reason for saying so is
this. Given that such encouragement of greater equality of
opportunity is likely to be a consequence of the bill’s
enactment, is it so fairly and realistically related to the
bill’s provisions that, were it not a desirable consequence,
the bill’s provisions could be amended so as to exclude its
occurrence? If the answer is ‘Yes’, I would regard the
consequence as a thing to be considered when determining whether
the provisions relate to a reserved matter. If however the answer
is ‘No’, then the consequence in my view is not closely
enough linked to the bill to be a thing to be taken into
consideration. In this case, the bill could hardly be amended to
prevent such encouragement occurring, and therefore its occurrence
is to my mind a loose, consequential connection.
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Given that the encouragement of equal opportunities which may be
occasioned but not brought about by the bill’s enactment has
only a loose and consequential connection with the bill’s
provisions, the fact that the gender balance of the Senedd which
may occasion that encouragement is brought about by prohibition and
regulation is of no relevance, as the bill’s provisions do
not themselves bring about that outcome.
Modification of the Equality Act 2010, section 104
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The bill requires registered political parties to construct their
candidates lists in accordance with its provisions so as to produce
lists which are gender balanced. The Llywydd has decided that this
amounts to a modification of a law on a reserved matter. In her
reasons, she states:
Section 104 of
the 2010 Act makes special provision for political parties by
permitting them (voluntarily) to adopt discriminatory selection
arrangements in order to address under-representation in their
candidate selection processes. Therefore, section 104
permits political parties to address under-representation,
but does not require them to do so.
The Bill,
however, requires political parties to address
under-representation: it requires at least half of candidates on
lists submitted by political parties to be women, and it requires
that the first or only candidate on at least half of those lists be
a woman. In the context of Senedd elections, in my view, the Bill
effectively turns the voluntary power to address
under-representation in section 104 into a duty to address
under-representation.
I have concluded that such a change amounts to a modification of
section 104. Even though the Bill does not amend the text of
section 104, the Bill is in conflict with section 104, which is a
modification of the law on reserved matters.
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The Llywydd states that in reaching this conclusion she has
considered the Supreme Court’s explanation of the meaning of
“modify” in the case concerning the UK Withdrawal from
the EU (Legal Continuity) (Scotland) Bill. In paragraph 51 of the
judgment of the court in that case, it is stated:
Without attempting an
exhaustive definition, a protected enactment will be modified by a
later enactment, even in the absence of express amendment or
repeal, if it is implicitly amended, disapplied or repealed in
whole or in part. That will be the position if the later enactment
alters a rule laid down in the protected enactment, or is otherwise
in conflict with its unqualified continuation in force as before,
so that the protected enactment has to be understood as having been
in substance amended, superseded, disapplied or repealed by the
later one.
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Section 104 of the Equality Act makes special provision for
registered political parties, enabling them to regulate the
selection of their candidates so as to reduce, among other things,
gender inequality in their representation in an elected body even
by having, in the case of the protected characteristic of sex,
single sex shortlists. The selection arrangements to which the
section applies are those “which the party makes”. The
Llywydd considers that the provisions of the Senedd bill modify
this law in that they require candidates to be selected in
accordance with its provisions.
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The provisions clearly do not expressly amend or repeal any part of
section 104. The question therefore is whether the provisions
implicitly amend, disapply or repeal in part the section’s
application to the protected characteristic of sex. The Supreme
Court’s judgment states that this will be the case if the
provisions alter the rule in section 104, or are in conflict with
its unqualified continuation in force so that the original
enactment has to be understood as having been in substance amended,
superseded, disapplied or repealed.
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The purpose of section 104 is, in my view, to exempt registered
political parties from the provisions of that part of the Equality
Act 2010 when making selection arrangements with a view to reducing
inequalities. In that it exempts parties, in the case of the
protected characteristic of sex, from having to adopt proportionate
means to do so and permits single-sex short-lists, it permits
parties to go much further than what is required by the provisions
of the Senedd bill. The Senedd bill does not disapply section 104
nor conflict with its continuation in force, but it may be argued
that it supersedes it in part by not allowing parties complete
freedom over whether they wish to adopt selection arrangements
which reduce gender inequality.
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In my view, the Senedd bill’s provisions supplement rather
than supersede the provisions of section 104. I reach that
conclusion on the basis that the purpose of section 104 is to
reduce inequalities and not to protect the freedom of political
parties as to whether they wish to reduce inequalities or not.
Political parties will remain free to go further than is required
by the Senedd bill to reduce gender inequality if they so wish, and
therefore the Senedd bill’s provisions do not supersede the
provisions of section 104 but rather supplement them.
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I believe that my interpretation of the relationship between the
Senedd bill and section 104 is supported by and is consonant with
the content and purpose of the fourth exception to reserved matter
N1 Equal opportunities which provides that:
provision
falling within this exception does not include any modification of
the Equality Act 2010, or of any subordinate legislation made under
that Act, but does include—
(a) provision that
supplements or is otherwise additional to provision made by that
Act;
(b) in particular, provision
imposing a requirement to take action which that Act does not
prohibit;.
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In that the provision contemplated by the exception must not
include modification of the Act but may include what paragraph (a)
and, in particular, paragraph (b) permit, it follows that what is
permitted by paragraphs (a) and (b) are not considered to be
modifications. The provisions of the Senedd bill fit the
descriptions given in those paragraphs.
Gender Recognition
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Unlike N1 Equal opportunities, L13 Gender Recognition
does not contain an interpretation provision setting out the
meaning of the reserved matter. In considering the meaning of
Agriculture in the original Schedule 7 to the Government of
Wales Act 2006, the Supreme Court stated that the term should bear
the meaning which it has as an “object of legislative
activity”, not a dictionary definition of the term. In the
case of agriculture, this meaning was wider than dictionary
definitions. In the case of gender recognition, it is in my
view likely to be narrower, and not so broad as to encompass all
requirements for persons to state their sex or gender. In my view,
therefore, the provision contained in the new section 7D(2), which
section 1 of the bill proposes to insert into GoWA 2006, does
not relate to the reserved matter L13 Gender
recognition.
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However, the bill requires provision to be made in a section 13
Order with regard to the declaration which persons nominated to be
candidates will be required to make as to whether they are or are
not a woman. The Explanatory Memorandum states such provision
is necessary to ensure the effective
implementation and enforcement of the candidate list requirements
(¶89)
and later states that
Much of the detail relating to how
the enforcement process will work in practice will be set out in an
Order made by the Welsh Ministers under section 13 of GoWA…
The powers in the legislation also include powers for the Welsh
Ministers to make specific provision in an Order under section 13
in respect of the right to inspect candidates’ gender
statements (¶114).
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A section 13 Order cannot make provisions which would not be within
legislative competence if included in an Act of the Senedd (GoWA
2006,s.13(1)). It is not difficult therefore to foresee potential
difficulties arising here. Issues may arise which will involve
gender recognition in the sense in which it is used as an
‘object of legislative activity’. Questions may arise,
for instance, if a nominee believes that someone preferred to them
in constructing a list does not fit their description of themselves
in their gender statement. The Data Protection Impact Assessment
recognizes that the order of candidates on a party list may on
occasion make it possible to ascertain what they have stated with
regard to their being a woman or not (EM, ¶230), and the
Justice System Impact Identification Assessment notes the likely
increase in “the potential circumstances which might give
rise to grounds for applying to the courts” (EM, ¶237).
Such questions, particularly if raised at a late stage, could be
seriously disruptive of the electoral process.
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It is clear that the anticipated detail which it has been left to
the Welsh Ministers to provide in a section 13 Order can affect the
rights of persons to stand as candidates in Senedd elections. The
Equality Impact Assessment notes this (EM, ¶ 215). Even though
lawful, it is questionable whether it is appropriate for detail of
this nature to be left to be provided in subordinate legislation.
Arguably it should be provided on the face of the bill so as to
allow full scrutiny of what is proposed by the elected
representatives of those affected, with opportunity for amendment.
In this instance, the choice of subordinate legislation also
increases the risk of seriously disruptive challenges.
Power to make consequential,
transitional etc., provision
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Section 3(2)(a) of the Bill enables the Welsh Ministers to make
regulations which may
“amend, repeal, revoke or
modify this Act or any other enactment (whenever passed or
made)”.
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This is an astonishingly broad ‘Henry VIII power’. Its
breadth is only tempered by the statutory interpretative
requirement to read provisions, where possible, as narrowly as is
required for them to be within competence. The power cannot
therefore be exercised so as to take the provisions of the bill,
once enacted, outside of competence.
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The frequent granting of Henry VIII powers to government ministers
in UK Parliamentary legislation has been the subject of severe
criticism in recent years, most notably in the House of Lords where
the late Lord Judge of Draycote, the former Lord Chief Justice of
England and Wales, was a notable critic. It would be a shame if
Senedd Cymru chose to follow Westminster’s bad example in
this regard.
Conclusions
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After much reconsideration with regard to what I have written, I am
on balance of the belief that the provisions of the bill as
introduced are within the legislative competence of the Senedd. The
arguments for and against this are however very finely balanced and
it would be foolhardy to be completely confident about my
conclusions. If the Bill is passed, as the Llywydd notes, it will
be open to the Counsel General or the UK Attorney General to refer
the matter to the Supreme Court to consider whether the bill or any
of its provisions are outside of competence. If that does not
occur, so that the bill progresses to Royal Assent, it will remain
possible for individuals to challenge the validity of the
legislation as a devolution issue in proceedings under the
provisions of Schedule 9 to GoWA 2006. It is not difficult to
imagine scenarios in which potential candidates or nominees
disgruntled by the operation of the legislation would choose to
wage such a challenge. It is not beyond imagining that the actions
of parties opposed to Welsh devolution might lead to such
challenges. The disruption to a Senedd General Election which such
challenges might occasion cannot fail to be a cause of concern. The
case for avoiding such possibilities is in my view strong, and it
is to be hoped that a definitive ruling on the validity of the
bill’s provisions will be obtained prior to its enactment and
implementation.
Thomas
Glyn Watkin*
17 April 2024