6.1 Referrals to the Supreme Court
The Assembly may have been granted primary law-making powers but that was not the end of the matter. There were a number of grey areas in the Government of Wales Act (2006). Several Welsh Acts passed by the Assembly have ended up in the Supreme Court after the UK Government questioned Cardiff Bay’s legislative competence.
The Agricultural Sector (Wales) – emergency legislation passed by AMs to address the abolition of the Agricultural Wages Board in 2013 – is a good example. Agriculture is largely devolved while workers’ rights are reserved. The Supreme Court held that the legislation was within the competence because ‘agricultural wages’ was not explicitly outside of the Assembly’s powers.
Referrals also worked the other way when the Welsh Government referred the UK Government’s Trade Union Act to the Supreme Court in 2017, claiming it infringed on devolved areas of competence.
These disagreements prompted further calls for a ‘reserved powers model’ whereby those areas in which the UK Government retained control were explicitly stated and everything else was assumed to be in the competence of the Welsh Assembly. It was eventually taken forward by the UK Government in the Wales Act (2017).