|Government Of Wales Bill - continued||House of Commons|
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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):
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):
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):
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:
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.
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:
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:
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:
361. The Clerk may not submit a proposed Measure for approval by Her Majesty in its unamended form if:
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.
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.
|© Parliamentary copyright 2005||Prepared: 8 December 2005|