House of Commons - Explanatory Note
Government Of Wales Bill - continued          House of Commons

back to previous text

Clause 93: Legislative competence

323.     The purpose of this clause and Schedule 5 is to set out the extent of the Assembly's power to make Measures (the Assembly's "legislative competence"). Its legislative competence may be altered by Order in Council under clause 94, amending Schedule 5.

324.     Provided it complies with the limits set by this clause and by Schedule 5, an Assembly Measure can have the same effect as an Act of the UK Parliament. In other words it can, for example, modify existing Acts of Parliament or other enactments and it can make new provision not covered by existing statutes.

325.     Subsection (2) makes it clear that if an Assembly Measure contains a provision which is outside the Assembly's legislative competence (that is, it goes beyond the limits set by this clause and by Schedule 5, as amended from time to time), that provision has no legal effect. However, the whole Measure is not rendered invalid, provided that the provision which is outside legislative competence can be severed from the Measure.

326.     Subsections (3) to (6) set out the rules with which a provision in a Measure must comply in order to be within the Assembly's legislative competence. It will only be within competence if it satisfies the criteria in either 93(4) or 93(5), and it also complies with 93(6).

327.     In order to satisfy the criteria in 93(4):

    a)     the provision in question must relate to one of the "matters" specified in Part 1 of Schedule 5; and

    b)      the provision in question must apply only in relation to Wales, and it must not confer, impose, change or remove (or give anyone else the power to confer, impose, change or remove) functions exercisable other than in relation to Wales

328.     Part 1 of Schedule 5 contains a list of fields, but only one of them ("National Assembly for Wales") has any matters specified in relation to it. So at the date of the Bill becoming law the only Measures which the Assembly could make would be those relating to those matters, which relate to the internal arrangements of the Assembly. Orders in Council under clause 94 will have the effect of adding matters under different field headings, thereby enabling the criteria referred to in a) above to be satisfied over wider areas.

329.     In order to satisfy the criteria in 93(5):

    a)     the provision in question must be one which enables a provision of an Assembly Measure (i.e. one which itself satisfies the criteria in subsection (4)) to be enforced or which is otherwise appropriate for making such a provision effective; or

    b)      the provision in question must be one which is incidental to or consequential on such a provision.

330.     So if a provision satisfies the criteria in subsection (5) it is not subject to the limitation in subsection (4) that a provision in a Measure may only relate to Wales. This, for example, will enable the Assembly to include in Measures necessary consequential amendments to Acts of Parliament to make it clear where they no longer apply in relation to Wales or to include provisions enabling the courts of England and Wales to enforce Assembly Measures effectively.

331.     In order to comply with 93(6):

    a)     the provision in question must comply with restrictions on the Assembly's legislative competence which are set out in Part 2 of Schedule 5 to the Bill. There are exceptions from these restrictions, which are set out in Part 3 of Schedule 5; and

    b)      the provision in question may not "extend" to any jurisdiction other than England and Wales. (England and Wales is a single legal jurisdiction and Assembly Measures will form part of the law of that jurisdiction. Although they will only, with limited exceptions, apply to Wales, they will be able to be enforced by the courts of England and Wales generally. They will not, however, be able to make provision forming part of the law of other legal jurisdictions such as Scotland); and

    c)      the provision in question must not be incompatible with the European Convention on Human Rights or European law.

332.     Subsection (7) lays down the test to be used to decide whether a particular provision in an Assembly Measure relates to a matter or matters listed in Part 1 of Schedule 5, and therefore whether it meets the criteria in 93(4)(a). The correct approach will be to consider the purpose of the provision having regard to its effect in all the circumstances.

Clause 94: Amendment of Schedule 5

333.     This clause provides a mechanism by which amendments may be made to Schedule 5 to the Bill, so as to enhance, restrict or otherwise change the Assembly's legislative competence to make Assembly Measures. Amendments are made by Order in Council, which can:

    a)     add to, remove or change the fields set out in Part 1 of Schedule 5;

    b)      list a matter or a further matter under a field, or remove or change a matter already listed;

    c)      amend Parts 2 or 3 of Schedule 5, which set out general restrictions on the making of Assembly Measures, and exceptions to those restrictions.

334.     A field can not be added to Schedule 5 if it is one in which no functions are exercisable by the Welsh Ministers, the First Minister or the Counsel General.

335.     An Order in Council amending Schedule 5 can also make changes to Acts, subordinate legislation made under an Act, prerogative instruments, other instruments or documents, where those changes are necessary or expedient to make the change to Schedule 5 work effectively.

336.     Orders in Council under this clause can make provisions which apply retrospectively (i.e., to things which have already been done). So, for example, where there has been a legal challenge to the validity of an Assembly Measure based on doubt as to whether its provisions relates to a relevant matter, an Order in Council may restore legal certainty about the Measure by amending a matter to remove any ambiguity.

337.     An Order in Council under this clause may only be made if the draft Order has been approved by the House of Commons, the House of Lords and the Assembly. Thus Parliament retains control over the fields and matters in relation to which the Assembly has power to make Measures.

338.     Once a draft Order in Council has been approved by the Assembly, the First Minister must, as soon as reasonably practicable, send the Secretary of State written notice of that fact and a copy of the draft approved by the Assembly. The Secretary of State must then decide whether to lay the draft Order in Council before Parliament with a view to obtaining approval of the two Houses. The Secretary of State is not obliged to lay the draft before Parliament but if the Secretary of State does not do so before the end of 60 days (not counting days when Parliament is dissolved or prorogued or adjourned for more than four days) written notice of the reasons for refusing to do so must be given to the First Minister, who must then lay it before the Assembly. The Assembly must publish it.

339.     Under subsection (10), if a change is made to Schedule 5, and thus to the Assembly's legislative competence to make Measures, the change is to have no effect upon Assembly Measures which have already been passed (or approved, in the case of Measures which have been reconsidered and amended) by the Assembly. So even if the powers of the Assembly were narrowed so as to remove the power to make a particular Measure it would remain law.

Clause 95: Scrutiny of proposed Orders in Council by Supreme Court

340.     Under this clause the Counsel General or the Attorney General may refer a proposed Order in Council to the Supreme Court for a decision as to whether the matter which it proposes to add to Part 1 of Schedule 5 relates to a field listed in that Part.

Procedure

Clause 96: Introduction of proposed Assembly Measures

341.     This clause imposes certain requirements in relation to the introduction into the Assembly of proposed Assembly Measures.

342.     A proposed Assembly Measure may, subject to provisions of standing orders, be introduced by the First Minister, any of the Welsh Ministers, any Deputy Welsh Minister, the Counsel General or any Assembly Member. Standing orders might restrict the ability of some of these persons to introduce a Measure.

343.     The person in charge of a proposed Assembly Measure must, on or before the Measure's introduction, make a statement expressing their view that the provisions in the Measure are within the Assembly's legislative competence.

344.     The Presiding Officer of the Assembly must on or before introduction of a proposed Measure, decide whether or not it is within the Assembly's legislative competence and state that decision.

Clause 97: Proceedings on proposed Assembly Measures

345.     This clause requires the Assembly's standing orders to contain certain provisions in relation to the consideration and passing (or approval, in the case of Measures which are reconsidered and amended) of Measures by the Assembly.

346.     Standing orders must ensure that, generally, Measures must pass through three stages.

347.     There must firstly be an opportunity for a general debate about the proposed Measure by the Assembly, and for Assembly Members to vote on its general principles. This stage mirrors the Second Reading stage of Bills in the UK Parliament.

348.     There must then be a stage involving consideration of, and an opportunity for Assembly members to vote on, the details of the Measure, corresponding to the committee stage of a Bill at Westminster.

349.     Finally there must be a stage at which members can vote on whether to pass the Measure in its final form. This is equivalent to the Third Reading of a Parliamentary Bill.

350.     Standing orders may allow a different procedure in the case of Measures which fall within certain categories, namely those which restate the law, those which repeal or revoke spent enactments and "private" Assembly Measures. In the case of the first two, standing orders may well permit a streamlined procedure whilst in the case of "private" proposed Measures procedures they are likely to include an opportunity for individuals affected to make representations to the Assembly, as in the case of private Parliamentary Bills.

351.     Standing orders must include provision for securing that, except in specified circumstances (which are left to standing orders to define) a proposed Assembly Measure can only be passed if the text of the proposed Measure is in both English and Welsh.

352.     Standing orders must provide for a Measure which has been passed by the Assembly to be reconsidered in certain circumstances. These are:

    a)     where the Supreme Court has decided that the Measure is outside the Assembly's legislative competence, following the Counsel General or the Attorney General referring that issue to the Supreme Court under clause 98;

    b)     where the Counsel General or the Attorney General has referred the issue of whether the Measure is within the Assembly's legislative competence to the Supreme Court under clause 98, the Supreme Court has then referred an issue arising out of it to the European Court of Justice for a preliminary ruling, but the reference to the Supreme Court has been withdrawn following a decision by the Assembly that it wishes to reconsider the Measure; or

    c)     where the Secretary of State has made an Order under clause 100 prohibiting the Clerk of the Assembly from submitting a proposed Measure for approval by Her Majesty.

353.     If a proposed Assembly Measure is, upon reconsideration, amended by the Assembly, then there must be a further final stage at which the amended Assembly Measure can be approved or rejected by the Assembly.

Clause 98: Scrutiny of Proposed Assembly Measures by Supreme Court

354.     This clause provides a mechanism through which either the Counsel General or the Attorney-General can obtain a decision by the Supreme Court as to whether proposed Assembly Measures or particular provisions of proposed Assembly Measures are within the Assembly's legislative competence. This may only be done within the four week period starting with the date the Measure was passed by the Assembly or, in the case of a Measure which has been reconsidered and approved by the Assembly, starting with the date the Measure was approved by the Assembly.

355.     If the Counsel General or the Attorney General formally notifies the Clerk that he or she is not going to make such a reference then he or she is afterwards barred from doing so (unless the proposed Measure has subsequently been reconsidered and approved).

Clause 99: ECJ references

356.     Where the Counsel General or the Attorney General has referred a proposed Assembly Measure to the Supreme Court, and the Supreme Court has referred a question in connection with the matter to the European Court of Justice for a preliminary ruling then, provided neither of these references has been decided or otherwise disposed of, the Assembly may opt to reconsider the proposed Measure under provision made under clause 97(6). If it does so the person who referred the proposed Measure to the Supreme Court (i.e. Counsel General or the Attorney General, as the case may be), must request the withdrawal of the reference. If, following reconsideration, the proposed Measure were to be approved, in an amended form, and the Counsel General or Attorney General are not satisfied that the amendment has removed the cause for referring the proposed Measure to the Supreme Court, a fresh reference may be made, within four weeks of that approval.

Clause 100: Power to intervene in certain cases

357.     This clause enables the Secretary of State to intervene and, by order which would be subject to annulment in pursuance of a resolution of either House of Parliament, prohibit the Clerk from submitting a proposed Measure for approval by Her Majesty in Council if the Secretary of State has reasonable grounds to believe that its provisions:

    a)     would have an adverse effect on matters which are not within the legislative competence of the Assembly;

    b)     might have a serious adverse impact on water resources in England, water supply in England or the quality of water in England;

    c)     would have an adverse effect on the operation of the law as it applies in England; or

    d)     would be incompatible with any international obligation or the interests of defence or national security.

358.     Such an order may be made within four weeks of the passing of the proposed Measure, or of the approval of the proposed Measure following reconsideration under provision made under clause 97(6) or, if a reference to the Supreme Court has been made under clause 98, within four weeks of the reference being decided or otherwise disposed of. If the Secretary of State has formally notified the Clerk that no order is going to be made in relation to the proposed Measure such an order is barred in relation to it, unless the proposed Measure is reconsidered and approved by the Assembly under provision made under clause 97(6) after that notification was given.

Clause 101: Approval of proposed Assembly Measures

359.     Once a proposed Measure has been passed (or approved upon reconsideration)

360.     by the Assembly, it is for the Clerk to submitting it for approval by Her Majesty in Council. The Clerk may not however do so:

    a)     if the Counsel General or the Attorney General is still entitled to refer to the Supreme Court under clause 98 the issue of whether a provision in the Measure is within the Assembly's legislative competence (i.e. if the four week period for doing so has not expired and they are not both barred from making a reference as a result of having notified the Clerk that they do not intend to do so);

    b)     if the Counsel General or the Attorney General has made a reference to the Supreme Court under clause 98 which has not yet been decided or disposed of;

    c)     if the Secretary of State is still entitled to make an order under clause 100 (see the notes to that clause) prohibiting the Clerk from submitting the Measure for approval by Her Majesty.

361.     The Clerk may not submit a proposed Measure for approval by Her Majesty in its unamended form if:

    a)     the Supreme Court has ruled, on a reference under clause 98, that the proposed Measure, or any provision of it, would not be within the Assembly's legislative competence; or

    b)     such a reference has been withdrawn as a result of a decision by the Assembly that it wishes to reconsider the proposed Measure.

362.     Once Her Majesty in Council has approved a proposed Measure the Clerk must write the date of that approval on the text of the Measure, must publish the instrument by which Her Majesty approved the Measure and must, in accordance with standing orders, notify the Assembly of the date of that approval.

PART 4: ACTS OF THE ASSEMBLY

Overview of Part 4

363.     Following paragraphs 3.22 - 3.29 of "Better Governance for Wales", this Part of the Bill makes provision for the Assembly to have primary legislative powers across the broad range of the Assembly Government's executive responsibilities, without the need for further recourse to Parliament. As the White Paper made clear,

such powers will only be conferred on the Assembly following approval for this in a referendum, and this Part of the Bill also makes provision for holding one.

364.     Clause 102 of the Bill provides for a referendum to be authorised by Order in Council (and Schedule 6 makes more detailed provision in relation to its organisation), but an Order may not be submitted to Her Majesty in Council for approval unless a draft has been approved by both Houses of Parliament and the Assembly; and in the case of the Assembly, such approval must be demonstrated by not less than two-thirds (i.e 40) AMs voting in support of the motion. If a referendum is however held and there is majority support for conferring these powers on the Assembly, the effect of clause104 is that the Welsh Ministers would be able to make a commencement order to bring the relevant "primary power" provisions into force. Once that is done, the Order in Council/Measure-making provisions of Part 3 to the Bill would cease to have effect, and the Assembly would in future be able to pass legislation, to be known as Acts, in relation to one or more of the "subjects" set out in Schedule 7.

365.     The White Paper states that conferring primary legislative powers on the Assembly would mean that "it would be able to make law on all subjects within its devolved fields". That is, the Assembly's primary legislative powers would extend to those subjects where it already has executive competence, and would preserve restrictions in particular areas where they exist now. The Bill sets out those subjects, and some restrictions, in Schedule 7. Clause 108 provides Order in Council powers for this Schedule to be updated to take account of any Measure making powers granted or transfers of functions agreed by Parliament between now and the time when any referendum might be in prospect; in other words, any referendum would proceed on the basis of an up to date statement of the scope of the powers to be conferred if the electorate approved of the Assembly gaining these powers.

366.     Unlike the Scotland Act 1998, the Bill defines the scope of the Assembly's "primary" legislative powers (after a referendum) by listing the subjects in relation to which the Assembly would be able to make law, rather than only listing those areas outside its legislative competence. The reasons for this were set out in a joint Memorandum from the Secretary of State for Wales and the First Minister for Wales to the Welsh Affairs Committee 14:

14 Evidence to the Committee, 10 November 2005.

    "Under the approach of the Scotland Act 1998 changes to the law which are made by the Scottish Parliament are not limited to specific subjects. They can include changes to basic principles of law. For example, the Scottish Parliament has made changes in land law in Scotland, beginning with the Abolition of Feudal Tenure etc. (Scotland) Act 2000).

    Scotland has its own distinct legal jurisdiction, with its own system of courts, judges, legal profession and provision for legal education. An ability on the part of its legislature to change basic principles of law and specific rules relating to subjects such as land law which have a general impact across almost all day-to-day activities is consistent with this situation.

    Wales is different. It forms part of a single unified England and Wales jurisdiction with a common courts system, judges who can act throughout the two countries and lawyers who are educated and who practice in a way which does not distinguish between England and Wales. There is no intention to change this. The Assembly is to be able to make laws which apply in relation to activities in Wales but these will be part of the general law of the jurisdiction of England and Wales.

    Lawyers who practice in Wales and judges who normally sit in Wales would inevitably be more familiar with laws which applied only to Wales than their colleagues in England but they would still be working within a single unified jurisdiction and if, in the course of a case being heard in England, it were relevant to consider something done in Wales to which an Assembly Act applied then the court would apply that Act in exactly the same way as it would apply an Act of Parliament.

    If the Assembly had the same general power to legislate as the Scottish Parliament then the consequences for the unity of the England and Wales legal jurisdiction would be considerable. The courts would, as time went by, be increasingly called upon to apply fundamentally different basic principles of law and rules of law of general application which were different in Wales from those which applied in England. The practical consequence would be the need for different systems of legal education, different sets of judges and lawyers and different courts. England and Wales would become separate legal jurisdictions.

    In order to avoid this result the simplest solution is to follow the Scotland Act 1978 model, limiting the legislative competence of the Assembly to specified subjects.

    The other approach having, in principle, the same effect would be to transfer general law-making powers to the Assembly but then to reserve fundamental legal principles and basic legal rules to the UK Parliament. The view of Parliamentary Counsel is that such a reservation would be so complex and its effect so uncertain that the alternative of limiting devolved legislative competence to specific subjects would be by far the better approach.

    There are further, subsidiary, reasons for adopting the Scotland Act 1978 approach in relation to Wales. Firstly, the list of reserved subjects which would apply in relation to Wales would be substantially longer and more complex than that in the Scotland Act 1998, in that it would need to include subjects such as criminal justice and the courts which are generally devolved in relation to Scotland but not in relation to Wales. Secondly, the task of formulating a list of devolved subjects in relation to Wales, which builds on the executive functions already devolved to the Assembly, is one which can develop out of the existing pattern of Welsh devolution and is therefore much easier to accomplish accurately and effectively than would be that of compiling an exhaustive list of subjects in relation to which the Assembly does not exercise executive functions"

367.     Assembly legislation made in exercise of "primary" legislative powers will be known as Acts. Clause 107 specifies the tests that provisions of Acts must satisfy if they are to be within its legislative competence. In particular, they must relate to one or more of the subjects in Part 1 of Schedule 7, and not fall within any of the exceptions in that Part. Rrstrictions on the use of the Assembly's powers, within the scope of its general area of legislative competence, are set out in Part 2 of Schedule 7. The question whether a particular provision of an Act is relates to a subject is to be determined by reference to its purpose, having regard (among other things) to its effect in all the circumstances" (clause 107(7)). Subject to these and other tests being satisfied, an Assembly Act may make any provision that could be made by Act of Parliament.

368.     Clauses 109 and110 make provision about Assembly proceedings on draft Acts, which are referred to as Bills. Subject to exceptions for special categories of Bill (see clause 110(3)), standing orders must include provision for general debate and a vote on the principles of a Bill; for detailed scrutiny of its provisions; and for a final endorsement of the Bill (including a final endorsement of a Bill which has been reconsidered and amended by the Assembly). Once Assembly consideration of the Bill is complete, the Clerk submits it to Her Majesty for Royal Assent, and the Bill becomes law on receiving this. But a period of four weeks following completion of the Assembly's deliberations on the Bill must elapse before it can be submitted, during which time the Counsel General or the Attorney General may refer to the Supreme Court any question as to the vires of the Bill; or the Secretary of State may prevent it from being submitted for Royal Assent if the Secretary of State has reasonable grounds to believe that its provisions are incompatible with international obligations or the interests of defence or national security, or might have a serious adverse effect on water resources, water supply or water quality in England, or would have an adverse effect on the operation of the law as it applies to England, or on non-transferred matters. Clause 110(6) requires the standing orders to provide for Assembly reconsideration of the Bill's provisions in such circumstances. The Bill may be submitted for Royal Assent before the end of the four weeks following its passing by the Assembly , if the Attorney General and the Counsel General have notified the Clerk that they are not going to make a reference to the Supreme Court, and the Secretary of State has notified the Clerk that no order is going to be made under clause 113.

 
previous Section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries index

© Parliamentary copyright 2005
Prepared: 8 December 2005