Complexity of making law in Devolved Wales

I'd been intending to post about The Local Government Bylaws (Wales) Bill. Now don't just switch off. Its really quite interesting. But it does depend on your being interested in how Wales is governed. Been prompted to blog now because have just read Matt Withers' take on this in his Wales on Sunday column today.

The Bill itself is strikingly inconsequential - except that it is the first bill passed by the Welsh Government since it was granted new law making powers last year. The purpose of the bill is to give to local authorities the power to pass bye-laws. Seems rather a good idea to me - and probably most people. But in achieving its purpose, the bill removes the power from the Welsh Government and the UK Government to confirm the relevant bye-laws. The problem arises because the Welsh Government does not have the 'competence' to remove power from the UK Gov't. That is the law - as it stands now. Matt seems to think this came as a surprise to everyone. Well it was not a surprise to me. I've known this has been under discussion for a long time.

Now, I have absolutely no objection to the content of the bill becoming law. Neither would I object to changing constitutional arrangements to prevent this sort of thing happening. But the constitutional settlement must be changed first. The Secretary of State for Wales has established the Silk Commission which will be looking at just this sort of issue - after its reported on how fiscal accountability can be vested in the Welsh Government this autumn. The thing about constitutional law is that you cannot just make it up as you go along. And its very amateurish to try.

This issue is of minuscule interest. But the same sort of difficulty could arise over the Welsh Gov'ts desire to change the organ donation system to one based 'presumed consent'. A bill to do this will be of much greater interest - both to me and more widely. When this matter was first proposed by the Welsh Gov't I was implacably opposed to it - but am much less so now. In fact, if the Bill contains a legal assurance that next of kin will always have a veto, I would personally favour going further than the Welsh Government. I would like to see the next of kin of every potential organ donor being approached in a positive sympathetic manner, rather than just those who had signed some register. But this is nothing to do with the legal point. Let me say what my personal approach would be if I were to be the decision-taker. I would not object to a bill because I didn't like it, or didn't approve of it. But if the Attorney General informed me he had doubts about the Welsh Gov'ts competence in this policy area, because of its 'human rights' implications, I would oppose it - and ask the Supreme Court to decide. That's what its for. So you can see - when its comes to it, the issue is quite simple.