Usually, words in legislation are given their plain English or Welsh (see section 156 of the Government of Wales Act 2006) meaning. Where the words might give rise to two or more different interpretations, the Court will try to determine the intention of the legislative body that made the legislation (e.g. the National Assembly for Wales). In all cases, decision-makers will need to understand the general purpose of the legislation and the purpose of the particular provision being relied upon.
In some cases the legislation may appear to give a decision-maker unlimited discretion and powers, without qualification (e.g. “the Welsh Ministers may grant the application”). However, consideration must also be given to the nature and purpose of the power and whether there are any express or implied limitations on the exercise of that power. Consideration should also be given to whether legal advice is necessary.
An express limitation is a specific provision in legislation which limits the decision-maker’s power. For example, section 2(2) of the Local Government Byelaws (Wales) Act 2012 specifically limits the scope of local authorities’ power to make byelaws under section 2(1). An express limitation may also be in the form of a list of particular purposes for which a power may be used, or a list of the criteria to be applied in using the power. These express limitations may be in the same section or part of the legislation as the power being relied upon, or in a different part of the same legislation, or in different legislation altogether.
An implied limitation arises where there is no specific limitation on the power being relied upon, but where the Court may imply or infer a particular limitation. For example, if a provision in legislation provides that “upon receipt of an application, a local authority may grant a licence”, despite the seemingly broad discretion given to the local authority by the use of the word ‘may’ (rather than ‘must’), the Court may still require the local authority to grant the licence in particular circumstances (e.g. where the applicant fulfils all the prescribed application requirements).
In some cases, decision-makers will be given powers under Measures or Acts of the National Assembly for Wales. In these cases, a decision-maker must comply with any express limitations set out in the legislation. It must also comply with the implied restriction that it must exercise its power in accordance with the legislative competence of the National Assembly at the time the legislation was made. Effectively, the decision-maker is prevented from taking any action that would have fallen outside the legislative powers of the National Assembly when the Measure or Act was passed.