1 Introduction
Background
1. Under the Government of Wales Act 1998, the powers
of the National Assembly for Wales (NAW) were restricted to the
making of secondary legislation within the scope of powers previously
delegated to the Secretary of State for Wales or subsequently
added to by primary legislation.
2. The structure and powers of the National Assembly
were significantly altered and expanded by the Government of Wales
Act 2006, which came into effect with the election of the Third
Assembly in May 2007. Part 3 of that Act provided for the Assembly
to make "Measures" within the scope of the legislative
competence defined by Schedule 5 to the Act. The Act also made
provision for that scope to be altered by amendments made to Schedule
5 either by primary or secondary legislation. Since 2007, the
Assembly's legislative competence has been significantly enlarged
by these means.
3. The 2006 Act also included, at Part 4, arrangements
for the transfer of primary legislative competence to the Assembly
following a positive vote in a referendum of the Welsh electorate.
The scope of that competence was defined (provisionally) by Schedule
7 to the Act.
Our inquiry
4. The Government has announced its intention that
on 3 March 2011 a referendum will take place in Wales on extending
the legislative competence of the National Assembly.[1]
Before it can be held, three Orders relating to the referendum
must be approved by both Houses of Parliament. The first Order
sets the date and defines the referendum question;[2]
the second Order relates to the amount of money the respective
campaigns can spend.[3]
5. This Report considers the third draft Order: the
National Assembly for Wales (Legislative Competence) (Amendment
of Schedule 7 to the Government of Wales Act 2006) Order 2010.
A "Yes" vote in the referendum would bring into effect
Part 4 of the Government of Wales Act (GOWA) 2006, giving primary
legislative competence to the NAW in certain areas. Schedule 7
of the Act sets out in detail the subjects over which the Assembly
would have the power to make laws in the event of a "Yes"
vote in the referendum. According to the Secretary of State, the
draft Order would amend Schedule 7 to take account of changes
in powers conferred upon the NAW since 2006.[4]
6. The draft Order was laid before Parliament by
the Secretary of State for Wales on 21 October 2010.[5]
On 1 November, we wrote to the Secretary of State, Rt Hon Cheryl
Gillan MP, requesting further information and clarification of
a number of points.[6]
We also issued a press notice inviting comments from members of
the public on the Order.[7]
7. We are grateful to the Secretary of State and
to others whose timely responses have enabled us to publish our
Report before the draft Order is considered by a Delegated Legislation
Committee of the House of Commons. On 15 December 2010, subject
to approval by both Houses of Parliament and the Assembly,[8]
the Secretary of State will submit the Order to be made by Her
Majesty in Council. Our Report considers the draft Order; it does
not address whether or not it is desirable that the people of
Wales vote "Yes" in the referendum on the Assembly's
powers.
8. The Committee was assisted in this inquiry by
its Specialist Advisers, Professor Keith Patchett and Alan Trench.[9]
1 HC Deb, 21 October 2010, col 72WS Back
2
The draft Referendum Order (National Assembly for Wales Referendum
(Assembly Act Provisions) (Referendum Question, Date of Referendum,
Etc.) Order 2010) Back
3
The draft Expenses Limits Order (National Assembly for Wales Referendum
(Assembly Act Provisions) (Limit on Referendum Expenses Etc.)
Order 2010) Back
4
Ev 1 Back
5
HC Deb, 21 October 2010, col 72WS Back
6
Ev 1 Back
7
http://www.parliament.uk/business/committees/committees-a-z/commons-select/welsh-affairs-committee/news/Schedule-7-Order/ Back
8
The National Assembly for Wales approved the Order on 9 November
2010. Back
9
See formal minutes of 26 October 2010 and 4 November 2010. Back
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