Select Committee on Welsh Affairs Minutes of Evidence


Supplementary memorandum submitted by Wales legislation on-line, Cardiff Law School

THE LEGISLATIVE PROCESS AS IT AFFECTS WALES

INTRODUCTION

  The purposes of this submission are to analyse and exemplify the main areas of difficulty in the accurate identification of the Assembly's functions. It details the general comments made in our earlier submission, Law making in Wales: Wales legislation on-line. Following a summary of the nature of executive devolution and of the nature of the questions that are addressed here, this submission considers five matters:

  1.  The Transfer of Functions Order 1999.

  2.  Post TFO Acts.

  3.  Commencement Orders.

  4.  Statutory Instruments made under post-1999 Acts.

  5.  Examples of subject area competence.

PRELIMINARY: THE NATURE OF EXECUTIVE DEVOLUTION

  Unlike the Scotland Act 1998, which transferred general legislative and ministerial competence in the devolved areas respectively to the Scottish Parliament and the Executive, save where excepted by Schedule 5, the Government of Wales Act 1998 provided only that discrete powers could be transferred by Order or by primary legislation. Whereas, for example, the Scottish Parliament has a general (primary) legislative competence in agriculture (unless excepted), the Assembly has only those individual powers within the "field" of agriculture (GOWA, Schedule 2) that have been transferred to it. To use the analogy of a jigsaw puzzle, in Scotland there is a picture of the full puzzle (for example, agriculture), from which some pieces may be removed. In Wales, by contrast there is no picture; only pieces. There may be a Minister for Health (formerly an Assembly Secretary) in the Welsh Assembly Government, but unlike her counterpart in Scotland, she does not exercise ministerial functions in respect of the whole of health, but only those functions that central government has allocated to the Assembly.

POLITICAL AND LEGAL QUESTIONS

  Our concern is with how, and not what, functions are transferred to the Assembly. Whether a function is to be transferred is a political question. Nevertheless, it should be recognised that the consequences of the political choice can create what, in law, appear anomalous or awkward legal questions for the Assembly. For example, sections 64 and 65 of the Road Traffic Regulation Act 1984 concern the information that may be placed on road signs. The TFO transfers to the Assembly power to prescribe a variant on a road sign as is provided by section 64. That transfer does not extend to the variation of any sign of a type prescribed by "the Ministers" and carrying words in English, being a variant identical with a sign of that type for the substitution or addition of words in Welsh. The Assembly cannot therefore decide what information is to be placed on road traffic signs, although it can decide what the Welsh version will be of the information that is prescribed by the Minister. Who should decide what information goes on road signs is clearly a political question; but in the distribution of powers there is a perhaps a need for their allocation to be reconsidered and redistributed.

1.  THE TRANSFER OF FUNCTIONS ORDER 1999

1.1  The effect of transfer to the Assembly

  We consider in this section the legal effect of the transfer of functions made under the TFO, using three groupings: the transfer of all functions in an Act or section(s), the transfer of functions to be exercised with central government, and the transfer of functions with exceptions. Within group three is a further category, the transfer of exceptions to exceptions. There is, therefore, a wide variety of possible permutations of transfers (with or without the involvement of central government), exceptions and sub-exceptions. A number of illustrative examples are given.

Group One: the transfer of all functions in an Act or section(s)

  1.  All functions in the named Act are transferred:

    —  Animal Health and Welfare Act 1984.

  2.  All functions in specific sections in the named Act are transferred:

    —  Cycle Tracks Act 1984, s 3.

Group Two: the transfer of functions to be exercised with central government

  3.  The transferred functions are to be exercised with the consent of central government:

    —  Food and Environment Protection Act 1985, sections 8(9), 16(2) and 18(4) (Treasury consent).

    —  Local Government and Housing Act 1989, section 80 (consent of the Secretary of State).

  4.  The transferred functions are to be exercised concurrently with central government:

    —  Road Traffic Regulation Act 1984, s 128: power to hold enquiries.

    —  Food and Environment Protection Act 1985, functions under sections 1(1), 3(1) and (2), 13, 14(2) and (3), 17 and paragraphs 4 to 6 of Schedule 5 exercisable by the Assembly concurrently with any Minister of the Crown by whom they are exercisable.

  5.  the transferred functions are to be exercised jointly with central government:

    —  This is particularly the case with a number of agriculture functions.

Group 3: transfer of functions with exceptions

  This group is more complex. There are different ways in which the exception may be effected. In addition, some transfers involve exceptions to exceptions. We deal with each category in turn.

Group 3A: simple exceptions

  The most straightforward is a statement of the excepted section, subsection or Schedule. They may also be effected by reference to a specific function, functions exercisable by central government, by reference to an area of Wales (and, in certain circumstances, England), or by reference to the matter to which the function relates. This last formulation is similar to the drafting practice of referential amendment, which requires the interpreter to work out what is being amended, or, in this case, transferred or excepted. The first four formulations (6-9) resemble textual amendment, in that the interpreter is told directly what has been transferred or excepted.

  6.  Exception by reference to specified parts of the Act:

    —  Building Act 1984, except sections 1, 2, 3(1), 6, 8(2), (3) and (6), 11 to 13, 14, 16(9), 17 and 19(7).

    —  Agricultural Holdings Act 1986, except paragraph 4(1)(a) of Schedule 12.

  7.  Exception by reference to a specified function:

    —  Building Act 1984, except section 20(5) so far as it relates to the function of prescribing the time and manner of appeals.

  8.  Exception by reference to functions exercisable by central government:

    —  Food and Environment Protection Act 1985, except the functions of the Minister of Agriculture, Fisheries and Food under sections 16 and 18 and paragraphs 1 to 3 of Schedule 5.

    —  Food Act 1984, the functions of "the appropriate Minister" under section 68 other than so far as they are exercisable by the Secretary of State for Wales.

  9.  Exception by reference to area:

    —  The Water Industry Act 1991 transfers functions to the Assembly "in relation to the Dwr Cymru water and sewerage undertaker and its area of appointment"—this includes parts of Herefordshire. This is recognised in GOWA section 44(4)(b) where there is a reference to the Assembly exercising subordinate legislative powers in relation to "an English border area."

  10.  Exception by narrative description of the function:

    —  Food and Environment Protection Act 1985, functions under Part II so far as exercisable in relation to matters concerning or arising from the exploration for, or production of, petroleum.

Group 3B: exceptions to exceptions

    —  Building Act 1984, except sections 20(10), 38(1), 43(3), 44, 47 to 49, 50 (except subsections (2) and (3)), 51 to 58, 92, 120 and Schedules 1 and 4.

    —  Industrial Development Act 1976: the TFO 1999 provides "Nothing is transferred in this Act, but it is directed that . . ." and then lists those exceptional functions which are transferred.

1.2  Transfers without subject areas

  Every transfer is a discrete allocation. As transfers to do with the same devolved subject matter accumulate, they can, to assist an understanding of the Assembly's powers, be categorised as belonging to one of the 18 "fields" specified in Schedule 2 to GOWA (as we have done with Wales legislation online). But this cannot in law be equated with the competence in their subject areas that is exercised by the Scottish institutions. To adopt the distinction used in French public law, the Scotland Act 1998 confers competence generale on its institutions. GOWA confers competence limitee on the body corporate that is the Assembly. As we have noted, the nature of the devolution settlement in each case is pre-eminently a political question, but the systemic or structural consequences of the choice that is made has a direct impact on the ease with which users can determine the Assembly's powers.

  It should be noted that the Schedule 2 fields in GOWA were included only for the purpose of the making of the first TFO. Because they have no underlying subject area rationale, transfers to the Assembly will, as noted earlier, present apparent anomalies within these fields, even allowing for its lack of general competence within them. For example, in the Schedule 2 field, "Transport", three consecutive instruments were made by central government in 2001. These broadly concern the condition and testing of public and privately owned motor vehicles. Two of them were made under the Road Traffic Act 1988 (the Motor Vehicles (Tests) (Amendment) Regulations 2001 (No 1648) and the Goods Vehicles (Plating and Testing) (Amendment) Regulations 2001 (No 1650)). It may be noted that other functions under this Act are devolved to the Assembly. The third instrument, which is the second in this sequence, (the Public Service Vehicles (Conditions of Fitness, Equipment, Use and Certification) (Amendment) Regulations 2001 (No 1649)) was made under the Public Passenger Vehicles Act 1981 under which no functions are devolved. For the user not privy to the decision that was made in Whitehall to allocate them in this way, this distribution of closely related functions within one of the GOWA fields is not readily comprehensible. This apparent lack of consistency in dealing with related matters is one obstacle to the task of identifying what are the Assembly's functions. The user can never assume that what are apparently related matters within the GOWA fields will be treated similarly for devolution purposes. As with the other 17, a user who wished to determine exhaustively what powers the Assembly has within the field, transport, would have to examine:

  (a)  the initial and any subsequent TFOs;

  (b)  any post 1999 Acts of Parliament dealing with transport; and

  (c)  all statutory instruments made under the Acts positively identified in (a) and (b).

  Nor is it generally recognised that by virtue of article 3 of the initial TFO, all of the powers contained in the secondary legislation made under the Acts which it lists were also devolved to the extent that the primary legislative powers were devolved. It is impossible to say exactly how many statutory instruments or powers this transfer comprises, nor which of them has been amended or revoked.

1.3  Agriculture: a special case

  Unlike all other Acts in the first TFO where powers are listed by reference to Parts or (sub) sections of those Acts, the powers in the Agriculture Acts passed before 1980 are only described by a general reference to the powers which the Secretary of State for Wales had under the TFOs made under the Minister of the Crown Acts. This means that it is necessary to look at the original TFOs that transferred powers in agriculture to the Secretary of State. There are considerable complexities here; for example Article 3(1) of the TFO (Wales) 1969 SI 1969 No 388.

1.4  Postscript: functions exercisable by central government with the Assembly

  Functions in respect of Wales retained by central government may have to be exercised with the consent of, or after consultation with the Assembly. These different forms of common action may be found in the same Act. For example:

    —  Race Relations Act 1976, section 71(B)(2): the Secretary of State must consult the Assembly before making an order under section 71(2).

    —  Race Relations Act 1976, section 71(B)(3): the Secretary of State must obtain the consent of the Assembly before making an order under section 71(2).

2.  POST TRANSFER OF FUNCTIONS ORDER ACTS

2.1  NEW LEGISLATION: GENERAL

  The patchwork transfer of functions evident in the initial TFO for the most part continues in subsequent TFOs made under GOWA. The Assembly is also given competencies under section 2(2) of the European Communities Act 1972 and by primary legislation enacted since 1999. In the case of section 2(2), the Assembly's enabling powers are expressed by reference to subject area (section 5.1(b) below). In relation to primary legislation enacted since 1999, we give two detailed examples below (section 2.3).

  The question considered here is whether, instead of these discrete allocations, it would be desirable for there to be a general provision in primary legislation where new functions are transferred, making that transfer. This can be done for Scotland because of the nature of the devolution settlement, which transferred general competence in subject areas, save for those excepted under Schedule 5. Thus post 1998 Westminster primary legislation dealing with matters devolved to Scotland shall, for some purposes, be deemed to have been enacted prior to 1999. This means that the subject matter in question, for example, in the Water Act 1999, is automatically a matter for Scotland.

  This device is not possible under the Welsh devolution settlement, as the Assembly has no general competencies in any subject area. There are two devices which could be used to assist clarity in what is transferred to the Assembly. The first would be the inclusion of a general provision to the effect: "Every reference in this Act to the Secretary of State is a reference to the National Assembly for Wales, except . . .". A limited example of such provision is section 150 of the Learning and Skills Act 2000 (below, section 2.2(b)). More radical is a section which, following the sections applying to England, provides that "the National Assembly for Wales may make such orders as it considers necessary to implement the objects in this Act." This is the kind of framework formula that many envisaged would follow from the proposals for devolution made in the White Paper. Conventions about the manner in which transfers are to be expressed would pre-eminently be a matter for the Concordats or Memoranda of Understanding.

2.2  New and Amended Functions: General

  An increasingly important matter is the effect of amendments in post 1999 primary legislation on Acts listed in the TFO which transferred functions to the Assembly. Three main possibilities arise:

  (a)  Any amendment to the transferred section (or subsection) is likewise an amendment to the Assembly's functions under that section (or subsection).

  (b)  Where the Act listed in the TFO transferred functions to the Assembly subject to exceptions, a new or an amended function is transferred to the Assembly unless it falls within those exceptions (this may be more complex where the transfer involved exceptions to exceptions).

  (c)  Where the post 1999 Act amends the Act listed in the TFO by the addition of a new section, or a subsection to a section which was not transferred, that new function is not transferred unless the Act so states.

2.3  Particular Transfers: Two Examples

  The Local Government Act 2000 and the Learning and Skills Act 2000 demonstrate two different ways in which functions may be transferred. In terms of clarity for the user, the Learning and Skills Act 2000 is a helpful model.

  (a)  Local Government Act 2000.

  This Act contains 109 sections and six Schedules. Within Part VI section 106 (Wales) provides:

Wales. 106. —(1)  In their application to Wales—

  (a)  Part II (but not section 44 or paragraph 7 of Schedule 1),

  (b)  Part IV, and

  (c)  section 105(2),

Have effect as if for any reference to the Secretary of State there were substituted a reference to the National Assembly for Wales.

  (2)  Section 105(5) to (7) does not apply to an order or regulations under this Act which is made by the National Assembly for Wales.

  (3)  Any reference in Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 to an Act which is amended by this Act is to be treated as referring to that Act as amended by this Act.

  (4)  Subsection (3) does not affect the power to make further Orders varying or omitting that reference.


  This section summarises the application to Wales of only some of its Parts; Part I for example makes its own provision. Only in the case of Chapter III of Part III is there an explicit reference to Wales (Chapter III: Investigations etc, Wales). It is therefore necessary to work through the entire Act to identify what functions are transferred. That exercise yields four groups:

    —  Functions which the Assembly may exercise independently of central government.

    —  Functions which the Assembly shares with central government.

    —  Functions which central government exercises with the consent of the Assembly.

    —  Functions which central government exercises in relation to Wales.

  The exercise also shows that some aspects of some sections fall into more than one of these groups; in particular, sections 2-5 fall into one or more of these four groups.

Functions which the Assembly may exercise independently of central government

  Sections 2, 3, 5, 6, 7, 11, 13, 17-20, 22, 25, 30, 32-36, 41, 45, 47, 49-50, 53-54, 68, 70, 73, 75-77, 81-82, 86-88, 93, 100-101, 105, 108.

Functions which the Assembly shares with central government

  Sections 3, 4, 82, 93, 100-101.

Functions which central government exercises with the consent of the Assembly

  Sections 5, 6, 9, 49-50, 82.

Functions which central government exercises in relation to Wales

  Sections 5, 6, 44, 49-50, 53-54, 82.

(b)  Learning and Skills Act 2000

  This Act contains 156 sections and 11 Schedules. Section 150 provides—

General Wales
150. —(1)  Where this Part of this Act confers a function on the Secretary of State (whether by amendment of another Act or otherwise)—
.

  (a)  the function shall be exercisable in relation to Wales by the National Assembly for       Wales, and
  (b)  for that purpose any reference to the Secretary of State shall be taken as a reference to       the National Assembly.

(2)  Where—
  (a)  this Part confers a function on the Secretary of State by amendment of an Act, and
  (b)  any functions of that Act have before the passing of this Act been transferred to the       National Assembly by Order in Council under section 22 of the Government of Wales       Act 1998 (transfer of functions),

the Order shall be treated for the purposes of any varying or revoking Order as having transferred to the National Assembly the function mentioned in paragraph (a).

(3)  Subsection (1)(a) has effect subject to any Order in Council made by virtue of subsection (2).

(4)  This section shall not apply in relation to—
  (a)  section 90, 92, 104, 134 or 154 of this Act,
  (b)  the amendment of section 1(3) of the Education (Fees and Awards) Act 1983 (fees at       institutions) made by Schedule 9 to this Act,
  (c)  the amendment of section 26 of the Employment Act 1988 (status of trainees etc) made       by Schedule 9 to this Act, or
  (d)  the amendment of section 19 of the Disability Discrimination Act 1995 (discrimination       in relation to goods, facilities and services) made by Schedule 9 to this Act.


  This section only applies to Part V of the Act. But it does contain two Parts (Part II and Part IV) which expressly state that they apply only to Wales, although the functions in some of the sections within these Parts are not transferred to the Assembly, but are exercisable by central government. There are also sections in other Parts whose functions are transferred to the Assembly that are expressly stated in their individual headings as applying to Wales. This Act generates three groups in its application to Wales:

    —  Functions which the Assembly may exercise independently of central government.

    —  Functions which the Assembly exercises after consultation with local authorities.

    —  Functions central government exercises in relation to Wales.

  As in the case of the Local Government Act 2000, some functions in some sections fall into more than one of these groups, though the overlap is less pronounced. Sections transferring functions that specifically state "Wales" in their headings or which fall within Parts II or IV are asterisked in the lists that follow. The conclusion we reach is that the manner in which this Act has been constructed, together with the clear signposting of the vast majority of sections which transfer functions to the Assembly, is more helpful to the user who wishes to establish what the Assembly may do under it, than the Local Government Act 2000.

Functions which the Assembly may exercise independently of central government

  Sections 30*, 38*, 40*, 43-44*, 46*, 48-50*, 75-76*, 81*, 83-85*, 91*, 93*, 99*, 102*, 107-08, 111, 123*, 127-128*, 140-141, 143, 148, 154.

Functions which the Assembly exercises with the consent of local authorities

  Sections 81, 112, 127, 143.

Functions which central government exercises in relation to Wales

  Sections 92, 154.

3.  COMMENCEMENT ORDERS

3.1  Introduction

  A Commencement Order brings a statutory provision into force. In terms of their legal effect, we may, broadly speaking, distinguish:

    (a)  those provisions which, upon their commencement, bring into force some new or amended law which neither permits nor requires any further action by any named body (for example, the Court, the Assembly, the Secretary of State) for it to apply to its subject-matter; and

    (b)  those provisions which, upon their commencement, require or permit a named body to undertake some further action in respect of the subject matter to which they apply; for example, section 75 of the Learning and Skills Act 2000, which permits the Assembly to make regulations adding other types of education to the remit of the Chief Inspector for Wales (Part II of the Act).

  We deal in this section with the relatively simple case outlined in (a); the more complex issues arising in case (b) are dealt with in section 4.

3.2  The Authority to make a Commencement Order

  There are a variety of possibilities concerning who has the authority to make commencement orders in respect of provisions affecting Wales under post 1999 Acts of Parliament:

    (a)  Where the entire Act applies only in Wales, it may designate the Assembly the appropriate authority (Children's Commissioner for Wales Act 2001).

    (b)  Where Parts of the Act, or particular (sub) sections, apply only in Wales, it may designate the Assembly the appropriate authority for those Parts or (sub) sections.

    (c)  Where Parts of the Act, or particular (sub) sections, apply only in Wales, it may designate central government the appropriate authority for those Parts or (sub) sections.

    (d)  The Act may designate the Assembly the appropriate authority for any one or more of its Parts or (sub) sections applying throughout England and Wales, as they apply in Wales.

    (e)  The Act may designate central government the appropriate authority for any one or more of its Parts or (sub) sections applying throughout England and Wales, as they apply in Wales.

  Two major consequences flow from these possibilities. The first is, in short, that the provisions of an Act as they apply in Wales may be brought into force in some instances by the Assembly (a, b, d), and in others, by central government (c, e). For example, in the case of the Care Standards Act 2000:

  1.  Central government brought some provisions of the Act into force in relation to England and Wales by the Care Standards (Commencement No 1) Order 2000 (SI 2000/2544 C72). [32]

  2.  Central government brought other provisions were into force in relation to England only by the succeeding six commencement orders,[33] and

  3.  The Assembly brought other provisions of the Act into force in relation to Wales only.[34]

  Commencement Orders under this Act in respect of Wales were therefore made by central government (1) and by the Assembly (3).

  The second consequence is that, irrespective of whether central government or the Assembly is the designated authority, the provision may be brought into force for England but not for Wales, with the result that different laws apply as between the two. For example, the commencement of the Commonhold and Leasehold Reform Act 2002 is a matter for central government for England and for the Assembly for Wales. A Commencement Order has been made for England,[35] but not for Wales. Consequently the new rights contained in the Act concerning land purchase are not yet available to people buying houses in Wales, wherever the purchaser may currently live. There is a further differential effect; namely, that the subordinate legislation made under earlier Acts repealed by the provisions of the 2002 Act will continue to apply in Wales until such time as the Assembly brings them into force.

3.3  The Timing of a Commencement Order

  Commencement Orders have two operative times: the date on which they are made, and the date that they specify for the commencement of the relevant section. The period of time between making and commencement may be short or long. This is a political decision that depends on a cluster of administrative and other factors that the designated authority considers important. In cases where equivalent provisions are applicable in England and Wales, it is apparent that different times may be chosen for the two jurisdictions by central government and by the Assembly (and sometimes for different purposes). Some of these possibilities may be depicted as follows, where M1-M3 are alternative dates for making the Order, and C1-C3 are alternative dates for the section to come into force:
Jurisdiction
Making
Into force
England
M
C
WalesM1………… M2………. M3 C1……….C2……………. C3

  An example is provided by the Housing Grants (Additional Purposes) Orders made under the Housing Grants, Construction and Regeneration Act 1996, made the Assembly in relation to Wales and central government in relation to England. This example also shows that the time differences may be substantial; in this case, virtually a year.
Jurisdiction
SI No
Made
Into force
England
2000 No 1492
6 June 2000
4 July 2000
Wales
2001 No 2070
24 May 2001
1 July 2001

  It is also of course possible that, though they are made on different dates, the sections come into force on the same date. Our research suggests that approximately 50 per cent of Orders made by central government and the Assembly respectively concerning equivalent provisions do coincide in time.

4.  STATUTORY INSTRUMENTS MADE UNDER POST-1999 ACTS

4.1  Introduction

  We have just noted that because of discrepancies in the timing of commencement orders made by the Assembly and by central government, the same provision may come into force at different times in England and in Wales. A number of other possibilities arise which flow from the substantive instruments made under post devolution legislation. Broadly speaking, there are now two sources of subordinate law applying to Wales: that made by central government and that made by the Assembly. These are:

  1.  In respect of non-devolved functions, central government continues to have absolute authority to make subordinate legislation for Wales.

  2.  In respect of devolved functions, subordinate legislation may, as set out in section 1.1 of this paper, be:

    (a)  made exclusively by the Assembly (Group One); and

    (b)  made by the Assembly jointly, concurrently or with the consent of central government (Group Two).

  In the remainder of section 4 we examine some issues that arise:

    —  in respect of 1 (non-devolved functions exercisable by central government); and

    —  in respect of 2(a) and (b) (devolved functions exercisable by the Assembly).

4.3  Functions Exercisable by Central Government:

(a)   Secondary legislation in education and health.

  Central government continues to make the bulk of the secondary legislation applying to Wales (as well as England) in these two areas. This is so, even though a number of functions within these areas have been transferred to the Assembly. The number of instruments made by the Assembly and by central government per year for these two subject areas are:[36]

HEALTH:
Year
National Assembly for Wales
Central Government
1999
5
22
2000
11
72
2001
18
31
EDUCATION:
Year
National Assembly for Wales
Central Government
1999
11
12
2000
14
41
2001
14
36

(b)   Jurisdictional obscurity

  It is not always clear whether an instrument made by central government applies only to England or to Wales as well as England. This is because there is no routine mention of the words, "Wales" or "Welsh" in their titles. In the absence of clear indication, every general instrument needs to be checked to see whether it does extend to Wales. Moreover, there is at least one instrument which, though expressly stating in its title that it applies only to England, also applies to Wales. This is the Beef Bones (Amendment) (England) Regulations 1999, where the Secretary of State for Wales was involved in the making of the SI.[37]

(c)   Supplementary Instruments for Wales

  Within the one instrument made by central government, some provisions may apply to England and Wales and some to England only. A supplementary Wales-only instrument made by the Assembly is therefore necessary to be read in conjunction with the England and Wales instrument in order to obtain the full picture. In the Adoption of Children from Overseas Regulations 2001 SI 2001 No 1251, regulation 1(2) provides that "this regulation and regulations 2 and 3 extend to England and Wales; regulation 4 extends to England only." The Explanatory Note states: "These provisions apply to England only; similar provision is to be made in relation to Wales by the National Assembly for Wales." Provision was made for Wales by the Adoption of Children from Overseas (Wales) Regulations 2001 SI 2001 No 1272 (W71). As a postscript to section 3.3, it may be noted that both instruments were made on the same day and came into force on the same day (30 April 2001).

4.3  Devolved Functions Exercisable by the Assembly

(a)   Timing

  When a section requiring or permitting the Assembly to make subordinate legislation is in force, the question arises, what is the timing of that subsequent action, and, in particular, if there is an equivalent function exercisable by central government for England, are or should they be exercised simultaneously? As with Commencement Orders, two operative dates may be distinguished: the date on which the Assembly acquires the function, and the date on which it exercises it. These dates may be the same as, or differ from, English only equivalents. Some of the possibilities may be depicted as follows, where A1-A3 are alternative dates on which the appropriate authority acquired the function, and E1-E3 are alternative dates on which it was exercised.
Jurisdiction
Making
Exercise
England
A
E
WalesA1………….A2………….A3 E1…………E2……………..E3

  The following two examples illustrate these points. The first shows the making of an order by the Assembly one month prior to central government making an order in respect of the equivalent provision (case E1: E). The second shows the making of an order by the Assembly six months after central government made an order in respect of the equivalent provision (case E: E3).

Example 1: earlier exercise by the Assembly: exercise of a power to commence certain sections of the Countryside and Rights of Way Act 2000

  Wales: Countryside and Rights of Way Act 2000 (Commencement No 1) (Wales) Order 2001. 2001/203 (W9): made 24 January 2001.

  England: Countryside and Rights of Way Act 2000 (Commencement No 1) (England) Order 2001. 2001/114: made 22 February 2001.

Example 2: later exercise by the Assembly: exercise of a power to exempt from rating on an additional class of plant and machinery under the Finance Act 1988

  England: Validation for Rating (Plant and Machinery) (England) Regulations 2001, 2001/846: made on 8 March 2001 (came into force on 1 April 2001).

Wales: Validation for Rating (Plant and Machinery) (Wales) Regulations 2001, 2001/2357 (W195): made on 26 June 2001 (came into force on the same day).

(b)   Content

  When a section requiring or permitting the Assembly to make subordinate legislation on a matter on which there is an equivalent function exercisable by central government, the question arises, is or should that legislation be the same as that made for England? Our research suggests that most of the instruments made by the National Assembly for Wales in their application to Wales are in fact very similar to those made by central government in their application to England only. Such coincidence may raise a number of questions. Some of these may have to do with the political independence of the Assembly in its implementation of the devolution settlement. Some may reflect what is no more than administrative convenience where the implementation is intended to be identical in the two territories. Not being privy to the decision within the Welsh Assembly Government as to whether the instrument is to be drafted in Cardiff, or a cut and paste from Whitehall, is not a matter on which we can comment. We estimate, however, that only about a quarter of the legislation made by the Assembly in 2001 was very different from that made by central government for England, though we have yet to undertake a full content analysis of all Assembly instruments.

(c)   Permutations of Timing and Content

  Where the Assembly has functions to exercise that have equivalents for England, the following permutations in the law applicable in the two jurisdictions are, in summary, possible:

    —  the timing and content for both are the same;

    —  the timing is the same but the content is different;

    —  the timing is different but the content is the same; and

    —  both timing and content are different.

(d)   Complex authorship

  The Assembly is frequently required to consult other authorities as part of the exercise of a devolved function. Instruments may need to be made by several authorities acting together, either with consent, concurrently or jointly. This may also engage other devolved institutions. This is especially true in the field of agriculture. The following are examples:

    —  Pig Industry Development Scheme 2000 (Confirmation) Order 2001 SI 2001 No 935: the Minister and the National Assembly act jointly, and with the consent of the Scottish Ministers.

    —  Home-Grown Cereals Authority (Rate of Levy) Order 2002 SI 2002 No 1461: the Secretary of State for Environment, Food and Rural Affairs, the Secretary of State for Northern Ireland and the National Assembly for Wales, acting jointly, and with the consent of the Scottish Ministers.

    —  Horticultural Development Council (Amendment) Order 2002 SI 2002 No 1676: the Secretary of State and the National Assembly for Wales, acting concurrently, with the consent of the Scottish Ministers.

5.  EXAMPLES OF SUBJECT AREA COMPETENCE

  In section 1.2 we remarked on the fact that the TFOs and the post-devolution Acts transferring functions to the Assembly do so discretely. This is a principal cause of the difficulty that anyone who wishes to identify the full range of the Assembly's functions will face. This need not always be so, as the following illustrate.

5.1  Transfer by Subject Matter

(a)   GOWA, sections 32 and 33

  In the first place, GOWA itself provides two examples of the transfer of subject area competence.

  Support of culture etc.

  32.   The Assembly may do anything it considers appropriate to support—

    (a)  museums, art galleries or libraries in Wales;

    (b)  buildings of historical or architectural interest, or other places of historical interest, in Wales;

    (c)  the Welsh language; or

    (d)  the arts, crafts, sport or other cultural or recreational activities in Wales.

  Consideration of matters affecting Wales.

  33.   The Assembly may consider, and make appropriate representations about, any matter affecting Wales.

(c)   European Communities Designation Orders

  The European Communities (Designation) (No 2) Order 2001 (2001 No 2555), the European Communities (Designation) Order 2002 (2002 No 248) and the European Communities (Designation) (No 2) Order 2002 (2002 No 1080) designate the Assembly in respect of the matters specified in Schedules to those Orders. These matters are expressed in terms of subject areas:

2001 No 2555:

  Measures relating to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment in so far as they concern the use of uncultivated land or semi-natural areas for intensive agricultural purposes. The protection of waters against pollution caused by nitrates from agricultural sources

2002 No 248:

  The conservation of natural habitats and of wild fauna and flora, but not:

    (a)  measures for the purpose of implementing, or dealing with matters arising out of or related to, Community legislation regulating trade in species of wild fauna and flora; or

    (b)  measures which, in the interests of conservation, concern the assessment of, and authorisation of, projects or plans likely to have a significant effect on natural habitats and habitats of species, unless a function relating to the authorisation of the project or plan, in the interests of any other matter, is exercisable by the National Assembly for Wales at the date of the making of this Order.

2002 No 1080:

  The implementation of the plans and programmes set out in the following documents:

  (a)  the Welsh Office's Single Programming Document for Community Structural Measures in Rural Wales in respect of Objective 5b approved by Commission Decision No C(95)4 of 6 January 1995;

  (b)  the National Assembly for Wales' West Wales and the Valleys Objective 1 Single Programming Document 2000-06 approved by Commission Decision No C(2000) 2049 of 24 July 2000;

  (c)  the National Assembly for Wales' Rural Development Plan for Wales 2000-06 approved by Commission Decision No C(2000)2932 of 11 October 2000;

  (d)  the National Assembly for Wales' East Wales Objective 2 and Transitional Programme Single Programming Document approved by Commission Decision No C(2001) 657 of 26 March 2001; and

  (e)  the National Assembly for Wales' LEADER+ Single Programming Document for Wales 2000-06 approved by Commission Decision No. C(2001) 1379 of 2 July 2001;

in so far as such implementation relates to the operation of the European Agricultural Guidance and Guarantee Fund.

  5.2  Potential for Transfer by Subject Matter

  It may be noted that unlike the discrete powers transferred to the Assembly under the Local Government Act 2000, section 2 transfers a general competence to local authorities.

Promotion of well-being Promotion of well-being.

    2.— (1)  Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects—

    (a)  the promotion or improvement of the economic well-being of their area,

    (b)  the promotion or improvement of the social well-being of their area, and

    (c)  the promotion or improvement of the environmental well-being of their area.

  (2)  The power under subsection (1) may be exercised in relation to or for the benefit of—

    (a)  the whole or any part of a local authority's area, or

    (b)  all or any persons resident or present in a local authority's area.

  (3)  In determining whether or how to exercise the power under subsection (1), a local authority must have regard to their strategy under section 4.

  (4)  The power under subsection (1) includes power for a local authority to—

    (a)  incur expenditure,

    (b)  give financial assistance to any person,

    (c)  enter into arrangements or agreements with any person,

    (d)  co-operate with, or facilitate or co-ordinate the activities of, any person,

    (e)  exercise on behalf of any person any functions of that person, and

    (f)  provide staff, goods, services or accommodation to any person.

  (5)  The power under subsection (1) includes power for a local authority to do anything in relation to, or for the benefit of, any person or area situated outside their area if they consider that it is likely to achieve any one or more of the objects in that subsection.

  (6)  Nothing in subsection (4) or (5) affects the generality of the power under subsection (1).

Professor Daid Miers, Mr David Lambert and Ms Marie Navarro

October 2002


32   Summarised in the Note to the Care Standards Act 2000 (Commencement No 7 (England) and Transitional, Transitory and Savings Provisions) Order 2001 (2001 No 2041; C68). Back

33   Summarised in the Note to the Care Standards Act 2000 (Commencement No 7 (England) and Transitional, Transitory and Savings Provisions) Order 2001 (2001 No 2041; C68). Back

34   Summarised in Welsh Statutory Instrument 2001 No 2538 (W213) (C83): The Care Standards Act 2000 (Commencement No 6) (Wales) Order 2001. Back

35   The Commonhold and Leasehold Reform Act 2002 (Commencement No 1, Savings and Transitional Provisions) (England) Order 2002, SI No 1912 (C58). Back

36   Consultation for Plaid Cymru, Marie Navarro, December 2001. Back

37   Consultation for Plaid Cymru, Marie Navarro, December 2001. Back


 
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