I was impressed by Manon George's account on ClickonWales of the Agricultural Wages (Wales) Bill and the legal issues that will now need to be considered by the UK's Supreme Court as a result of the Attorney General referring it to them. Emyr Lewis's comment was very informative, and this Research Note should also be helpful for those who want more background information.
However, although the Supreme Court will primarily consider the legal aspects of this case there are also political aspects, and it is these that I would like to focus on here.
It has been apparent since December last year that the UK Government wished to abolish Agricultural Wages Board for Englandandwales, therefore one question to be asked is why the Welsh Government left it for a full six months before introducing a bill to retain (and indeed to enhance and modernize) its functions for Wales only. The major criticism levelled at the WG by the opposition parties in the Assembly is that it should surely have been possible to attempt to reach a satisfactory conclusion during this period rather than only introduce it at the last moment by means of emergency legislation.
This criticism isn't entirely fair, for the WG did at least try to take up the matter by means of a Legislative Consent Motion in January this year, but opposition AMs blocked it in the Assembly. However the opportunity of trying to resolve the issue at inter-governmental level did at one time appear to have been open, for the UK minister involved had said:
"There are constitutional issues which I'm not going to go into. This is not a devolved matter at the moment – agriculture is, but wages control is not.
"That doesn't stop us having a perfectly sensible dialogue with Welsh colleagues to see if we can find a way forward."
"At the moment", "sensible dialogue" and "to see if we can find a way forward" are strong hints that the UKG would have considered devolving the functions of the AWB to Wales ... although whether this was ever intended as a sincere offer is another question entirely, and one that it's probably better not to address. What we can say is that, for whatever reason or reasons, devolution of responsibility for the specific functions of the AWB to Wales did not happen.
By not reaching an agreement on the specific matter of whether the functions of the AWB should be devolved to Wales, the case must now be decided on the general matter of whether aspects of control over, say, wages and conditions within a devolved subject area are, to use the words of the previous Supreme Court judgment on bylaws, "incidental to and consequential on" the exercise of legislating in that devolved subject area. I think the Supreme Court is highly unlikely to make a specific ruling on whether the functions of the AWB should be devolved to Wales, for that would be to usurp a political decision. It is only likely to rule on the general principle of legality, and what applies to one devolved area must then equally apply to other devolved areas.
It remains to be seen what arguments will be adopted by both sides when the matter comes before the Supreme Court, but it seems clear to me that, in general terms, control of wages and conditions in a devolved subject area is likely to be thought of as incidental. The situation in both Scotland and the Six Counties is the same as it is in Wales in these two respects: agriculture is devolved to all three legislatures, but employment is not devolved to any of the three legislatures. Nevertheless, Scotland and the Six Counties have their own Agricultural Wages Boards, and can therefore control aspects of wages and employment conditions for agricultural workers, even though employment is not devolved to them. Therefore in terms of general principle, Wales must also be able to control aspects of wages and employment conditions for agricultural workers without it compromising or contradicting the fact that employment is not devolved to Wales.
This is where things get interesting, for if this general principle is upheld by the Supreme Court it opens the way for what Emyr Lewis calls "a Pandora's box of legislative possibilities". I don't think it is at all likely that the Assembly will want to make laws on the armed forces or immigration (the subjects Emyr mentions) but I think that the Assembly would look very seriously at legislating to control aspects of wages and employment conditions in, for example, education.
Education is unquestionably devolved to Wales, but teachers' pay and conditions are not. At present the School Teachers' Review Body makes recommendations regarding employment terms and conditions for teachers in Englandandwales, and can therefore be said to perform a roughly similar function to the old Agricultural Wages Board for Englandandwales. Scotland has its own separate body, the SNCT. One obvious question is why, if the current UKG was determined to abolish the AWB for Englandandwales, it didn't also act to abolish the STRB at the same time. The answer is that it doesn't need to, because the STRB only makes recommendations for teachers in local authority controlled schools, and these schools are rapidly becoming a thing of the past in England as a range of central government sticks and carrots either force or entice schools out of local authority control. These schools are then able to determine the pay and conditions of the teachers they employ without reference to STRB recommendations. Why abolish something that is already withering away?
In Wales the situation is different. We have very few schools that are not under local authority control, and the current WG is determined to make sure that things stay this way. Another factor in Wales is the increased importance of teaching assistants, particularly because of the higher adult to child ratio required to deliver the Foundation Phase. Only a few weeks ago the lack of nationally agreed rates for teaching assistants was highlighted by Unison, but the WG is quoted as saying:
"We do not have the power to act with regards to pay and conditions of support staff."
Therefore if the Supreme Court upholds the general principle that control of certain aspects of the terms and conditions of workers in a devolved subject area are "incidental to and consequential on" the Assembly's right to legislate in that area, it would be possible, entirely reasonable, and (from my point of view) desirable to establish an "Educational Wages Board" that would set down minimum terms and conditions for all those involved in education in Wales, covering all grades of qualified teachers, non-qualified teachers, teaching assistants and support staff ... and not just in the maintained sector, but extending to the independent sector as well. We in Plaid Cymru would certainly welcome it. This is from the same article:
Simon Thomas, education spokesman for Plaid Cymru, said teaching assistants had become "essential" and suggested devolving pay of teachers to Wales to enable a national package to be put together to manage the terms of all education workers.
So although the Supreme Court will primarily concern itself with whether the National Assembly has the legal competence to enact the Agricultural Wages (Wales) Bill 2013, the consequence of a decision to uphold it will be to extend a general principle to other devolved areas.
In political terms, the current UKG might well have shot itself in the foot by not reaching a specific agreement with the WG to devolve the functions of the AWB to Wales (which it could easily have done by amending the scope of Schedule 7 under the provisions of Section 109 of the GoWA 2006) and intransigently refusing to accept that this was a matter that concerned the National Assembly in any way at all.
Or, from a different perspective, one might say that by passing this legislation without reference to the UKG (the WG tried, but failed, to get an LCM through the Assembly) the WG have now managed to engineer a situation where a general principle of devolution law can be tested in the Supreme Court, with the consequence of extending the devolution settlement beyond what it would have been if a specific agreement on devolving the functions of the AWB had been reached. Clever design, or happy accident? I'll go for serendipity, I don't think anyone in the Welsh Government is that clever.