Getting to grips with our powers

Emyr Lewis, Tessa Shellens and Gareth Howells outline the legislative process now open to the National Assembly following the referendum

The National Assembly’s legislative competence took a significant leap forward on 3 March 2011 when the majority voted yes in the referendum on expanding the National Assembly’s law-making powers. Turn-out was fairly low, but everyone knew beforehand that those who turn up get to make the decisions.

Devolution in Wales has, until now, been a complex and intricate affair. Those who did not quite understand how Legislative Competence Orders, Fields, Matters and Measures interacted with each other can forget about the past and focus on the 20 subject areas in which the National Assembly can now make legislation in the form of Acts of the Assembly.


Conference – Thursday 24 March 2011

Future Inns, Cardiff Bay

After the Referendum – Prospects for the fourth term

IWA conference organised with the Wales Governance Centre and Public Affairs Cymru

Emyr Lewis is a keynote speaker at this conference which surveys what kind of National Assembly the political parties are proposing for the next four years. What kind of government will emerge in the wake of the referendum and  following the election? In the event that none of the parties will win overall control what coalition options they will face? How prepared are they for the negotiations that will follow and what are their policy red lines?

Other speakers include:

Professor Richard Wyn Jones, Director, Wales Governance Centre

Lee Waters – Yes for Wales

Rachel Banner – True Wales

Nick Bourne AM, Welsh Conservatives

Nerys Evans AM, Plaid Cymru

Andrew Davies AM, Welsh Labour

Peter Black AM, Welsh Liberal Democrats

More information and a booking form here.

These 20 subjects are found in Schedule 7 to the Government of Wales Act 2006 and include Health, Education, Housing, Local Government and Transport. This new arrangement will free the National Assembly from the cumbersome process of acquiring ‘legislative competence’ and the corresponding restricted powers with which it has wrestled over the last few years. The new arrangement will take effect from 5 May 2011.

The National Assembly has already made laws in the form of Assembly Measures. Although these are on the statute book (and will remain there), on the whole they are not really doing that much, yet. The framework nature of the Measures means that Regulations and Orders are needed to put real flesh on their bones and relatively few of these have trickled down thus far.

Nonetheless, the effects of the Measures will emerge in important areas such as the provision of public services in the Welsh Language, affordable housing, the right to assessment for mental health patients, NHS Redress and the rights of carers. 
If Welsh legislation does make the headlines in future, then it is just as likely that it will be secondary legislation made by the Welsh Government rather than the National Assembly.

Ask people on the street to name the big pieces of Welsh legislation and they are likely to come up with free prescriptions, protecting students from increased tuition fees and the badger cull. All of these were made under executive powers given to Welsh Government Ministers under Westminster framework legislation. Now there is less of a gap between the areas in which the Welsh Government can act, and the area where the Assembly (to which it is accountable) can legislate. Now that the National Assembly is largely free to legislate as it wishes in each of the 20 subject areas, we can expect a further significant increase in Welsh law. The differences between Welsh law and English law will become even more marked.

The National Assembly will be able to pass Acts in the 20 prescribed ‘fields’ which broadly mirror those areas where it could up till now enact an Assembly Measure. The fields can be extended or further new fields can be added in due course with the agreement of Parliament.

An Assembly Act will have the same status as an Act of Parliament. However, an individual could potentially challenge an Assembly Act on the basis that it was made outside the Assembly’s powers.

The effect will be that the Assembly can respond more quickly to implementing primary legislation for Wales. By way of example, currently the Assembly has applied to Parliament for agreement to a Legislative Competence Order to introduce the principle of presumed consent for organ donation in Wales. Such a preliminary step would not now be necessary. The Assembly could simply proceed to debate and scrutinise a proposed Bill prior to passing an Assembly Act.

Bills may be introduced by any Minister of the Welsh Government or by another Assembly member. The proposer and the Presiding Officer must each make a statement that the Bill falls within the Assembly’s competence. Consideration of a draft Assembly bill will be very similar to the consideration of bills at Westminster. There will be three stages:

  1. A general debate and vote on the principle of the bill.
  2. Consideration and voting on the details, similar to the Committee scrutiny stage at Parliament.
  3. A final plenary stage at which the bill is passed or rejected.

There may be expedited proceedings on individual bills to deal with an emergency. Once a bill has been passed the Clerk sends it for Royal Assent with the introduction of a special Welsh Seal and Letters Patent to signify assent.

As the sovereign institution, the UK Parliament still retains the right to legislate for Wales within any of these devolved fields. Currently, if it wishes to exercise this right, a process is used to gain consent from the National Assembly. This same process is likely to be retained. Thus the Standing Orders of the Assembly provide that a Welsh Minister must lay before it a Memorandum on any legislation at Westminster on devolved matters. The Memorandum explains the purpose of the legislation and expresses a view as to its appropriateness. It is accompanied by a ‘Legislative Consent Motion’ which seeks the Assembly’s approval of the inclusion of devolved matters in the bill.

It is of interest that recently the Assembly rejected two Legislative Competence Motions for the first time. These both related to the Police Reform and Social Responsibility Bill currently before Parliament which it disagreed with on policy terms for implementation in Wales.

Legislation may be challenged where there is concern that the Assembly is acting outside the powers which have been devolved to it. The more legislation the Assembly decides to enact, then the more likely it becomes that legal challenge may arise from time to time as to whether specific legislation is within the powers which have been devolved.

Where a dispute arises, the 2006 Act has created various mechanisms for determining whether a bill or an Assembly Act is within the Assembly’s legislative competence:

  • The Counsel General and the Attorney General have the power to refer a bill to the Supreme Court to decide whether it falls within the competence of the Assembly within a four week period following passage of the Bill. If the Supreme Court finds that the bill is not within its competence, then the Assembly may reconsider it, amend it, and then approve or reject it in amended form.

  • The Secretary of State has powers to intervene if s/he believes that a bill contains provisions which would have adverse effects on (1) non-devolved matters; (2) water in England; (3) the operation of the law in England; or (4) international obligations, defence and national security. S/he has four weeks after the passage of the Bill, its approval following amendment after a referral, or the end of the Supreme Court’s consideration of a referral, in which to make an order prohibiting the Clerk from submitting the bill for Royal Assent.

  • Section 151 of Government of Wales Act allows for an Order in Council to make such provision as Her Majesty considers appropriate in consequence of an Act of the Assembly, or one of its provisions, which is not, or may not be, within the Assembly’s legislative competence.

  • There is also a process for determination of any devolution issue raised in any court proceedings. The Act sets out a process for determining the appropriate Court to hear a devolution issue when it is raised by any individual. Devolution issues cover questions of legislative competence, of whether a particular function is exercisable by the Welsh Government, of failure by the Welsh Government to comply with its duties, and questions of whether a failure to act by the Welsh Government contravenes the European Convention on Human Rights. The Act also enables the Attorney General or the Counsel General himself to institute proceedings to determine a devolution issue. They must also be informed of such issues if they arise in other proceedings. Further they may refer a devolution issue to the Supreme Court regardless of whether it is the subject of proceedings.

This is a time of significant constitutional change for Wales as it matures as a primary legislature in its own right. The expectation will be that a Welsh Statute Book will be needed so citizens can easily access the body of Welsh law which will develop. It remains to be seen as to what pressure there may be for the National Assembly to gain further powers, for example in relation to criminal law and to raise taxation in years to come.

Currently England and Wales retains a single jurisdiction although the Judiciary has been keen to secure that the Court process is devolved. The establishment of the Administrative Court for Wales has led to the development of a local judiciary with specialist expertise in Welsh public law issues. Judicial Review cases are now heard in selected courts across Wales.

The manifestos of the political parties should give us a good idea of what Acts of the Assembly will be introduced. The parties will now find it easier to set out in their manifestos the legislative programme which they hope to introduce over the next 4 years.

Emyr Lewis is a solicitor and partner with the Morgan Cole firm, specialising in constitutional affairs. Since the first Government of Wales Act in 1998, Morgan Cole has been advising clients in the public, private and voluntary sectors on the increasing divergence of Welsh law from the situation in England.

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