Commentary on Sections Part 2: Interpretation and Operation of Welsh Legislation Section 28 – Application of Welsh legislation to the Crown
148.The question of whether an Act or subordinate legislation binds the Crown(3) (that is, whether or not the Crown is subject to any duty or burden imposed by the Act) can be problematic in practice. The common law rule(4) is that Acts and subordinate legislation do not bind the Crown unless:
149.This means that in the absence of an express provision binding the Crown, the question of whether an Act binds the Crown needs to be considered by looking at the rule and its limits, and then determining whether the nature, context and content of the Act in question mean that the National Assembly must have meant for the Crown to be bound.
150.Section 28(1) replaces the common law rule with a statutory rule. In relation to Assembly Acts to which Part 2 applies, it reverses the common law position so that the rule is that an Assembly Act does bind the Crown. Section 4(3) provides that this statutory rule is not subject to the exception in section 4(1)(b), but only to the exception in section 4(1)(a). In other words, the default rule has effect except so far as legislation expressly provides otherwise (for example, by stating that provisions in a particular Assembly Act do not bind the Crown).
151.The situation is more complex in relation to subordinate legislation, and a particular issue would arise if a Welsh subordinate instrument was subject to the rule in section 28, but the Act under which it was made was not. Section 28(2) deals with that issue by providing that a Welsh subordinate instrument to which Part 2 applies binds the Crown if it is made under an enactment which binds the Crown or which confers a power to bind the Crown. The rule for Welsh subordinate instruments is therefore that they bind the Crown wherever it is possible for them to do so. However, by virtue of section 4(3) the operation of this default rule is still subject to any express provision that is made to the contrary.
152.Where legislation provides that it binds the Crown, it usually also includes provision making clear that it does not make the Crown criminally liable, but that this does not prevent persons in the service of the Crown being criminally liable. Section 28(3) makes general provision to this effect in relation to Assembly Acts and Welsh subordinate instruments (again, subject to any express provision to the contrary).