2 The current powers of the National
Assembly for Wales
The current legislative competence
of the National Assembly
9. Unlike the other two devolved jurisdictions of
the UK (Scotland and Northern Ireland) where the scope of devolved
powers is defined by exception (that is that the legislatures
can make the law in any area other than those which are specifically
excluded by statute) the competence of the National Assembly for
Wales is defined by inclusion. The Assembly can only legislate
in areas where it has explicit statutory authority to do so, granted
by Parliament. The extent of the Assembly's legislative competence
is set out in Part 1 of Schedule 5 to the Government of Wales
Act 2006, subject to certain restrictions set out in Part 2 of
that Schedule. The Schedule specifies a number of "fields".
Within each field "matters" can be specified. Currently,
Assembly Measures can make the law for Wales within the scope
of any "matter".
10. Devolution of legislative competence to the National
Assembly has so far been a process of adding to these fields.
Further matters have been added by primary legislation (when a
bill on an appropriate area is going through Parliament) or by
a procedure under which the National Assembly can bring forward
proposals for Legislative Competence Orders (LCOs) under section
95 of the Act.[10] The
primary legislation or Orders in Council when made do not themselves
change the general law for Wales - they pave the way to subsequent
changes in the law applying to Wales within the devolved areas
of legislative competence by enlarging the scope of the Assembly's
legislative competence.
11. Since 2007, 15 proposals for draft LCOs have
been introduced by the Welsh Assembly Government, by committees
of the National Assembly, or by individual Assembly Members. These
have been subject to pre-legislative scrutiny by committees of
the Assembly and referred by the Secretary of State for Wales
to each House of Parliament for pre-legislative scrutiny at Westminster.
In the Commons, this pre-legislative scrutiny has been undertaken
by its Welsh Affairs Committee,[11]
and in the Lords by its Constitution Committee.
12. Following the pre-legislative scrutiny stage,
the National Assembly has agreed an actual draft Order which has
been laid before Parliament by the Secretary of State for Wales.
Once approved, and once royal assent has been given, direct law-making
powers have been devolved to the Assembly within the scope of
the new matter or matters thereby added to Schedule 5 of the 2006
Act. Within that scope the Assembly can then make the law for
Wales in the form of Assembly Measures, which must be passed by
the National Assembly but which require no further approval by
either Whitehall or the UK Parliament.
13. Since 2006, the operation of the arrangements
under Part 3 of the Act has resulted in a widening range of legislative
powers being conferred on the Assembly.[12]
The current legislative competence of the National Assembly is
therefore that set out in Schedule 5 to the 2006 Act, as amended.
It sets out the matters in relation to which the Assembly may
legislate by Assembly Measure, restrictions on the Assembly's
legislative competence to legislate by Assembly Measure and exceptions
to those restrictions. There are twenty fields in Schedule 5;
with the exception of the field relating to the functioning of
the Assembly itself, the fields are broadly based on the areas
in which the Welsh Ministers have executive functions.
14. Following a majority affirmative vote in a referendum,[13]
the primary legislative competence of the Assembly would then
be defined by Schedule 7 to the 2006 Act, rather than by Schedule
5.
15. Following a "Yes" vote in the referendum,
the new legislative powers which could be exercised by the NAW
would be broader than those currently exercised under Part 3 of
the Government of Wales Act.[14]
Although under the present arrangements, Schedule 5 allows for
powers to be conferred in 20 Fields, in five fields none has been
introduced to date. Under Part 4 and Schedule 7 the Assembly
would gain immediate competence over the full range of Subjects
set out there.[15]
Schedule 7
16. Schedule 7 sets out the legislative powers that
would be exercisable by the National Assembly if the "Assembly
Act" provisions set out in Part 4 of the Act were to come
into effect. If an area of law is defined in Schedule 7, the National
Assembly will be competent to legislate in that area. As is the
case currently with Schedule 5, the National Assembly would have
no power to legislate on matters not set out in the Schedule,
or explicitly excluded from it. The Schedule therefore is central
to the working of those powers.
17. In the original scheme of the 2006 Act, it was
provided that the first Order amending Schedule 7 would be subject
to negative, rather than affirmative resolution procedure. That
was on the basis that the first revision would do no more than
tidy up the Schedule and align it with the then existing competence
of the Assembly, prior to the commencement of Part 4. However,
the first revision was made in 2007, and therefore this draft
Order is subject to the affirmative resolution procedure. We welcome
the fact that this provides a better opportunity for the House
to take stock of what is proposed before making its decision.
18. The draft Order in Council we are examining in
this report would amend Schedule 7 in advance of the referendum.
This would enable the voters in the referendum, if they chose
to, to inform themselves of the scope of the powers on which they
were being invited to decide whether to extend to the National
Assembly. We have conducted this swift inquiry and produced this
short Report so that the House, in deciding whether to approve
the draft Order, will understand what powers it is potentially
transferring to the National Assembly. We were particularly concerned
to establish the extent to which those powers would differ (whether
they would be narrower or broader) than the existing powers enjoyed
by the Assembly. We were also concerned to look briefly at the
implications of the new devolution settlement that would follow
an affirmative vote in the referendum for the mechanics of relationships
between the UK Government and the Welsh Assembly Government (WAG)
and between the UK Parliament and the National Assembly. We have
not considered the question of whether the new settlement which
would be ushered in by an affirmative vote in the referendum is
desirable.
19. In most instances, Schedule 7 expresses the "subjects"
on which the Assembly may legislate in much broader terms than
the "matters" in Schedule 5. While matters in Schedule
5 are typically expressed in specific and precise language, those
in Schedule 7 use much more general terms. In consequence, Schedule
7 is shorter and far less detailed than the way Matters are elaborated
in Schedule 5.
20. In October, David Jones MP, Parliamentary Under
Secretary of the Wales Office, described the purpose of the Order
as a tidying up exercise, "It is essentially so that when
people vote in the referendum, they will know precisely what powers
are proposed to be devolved to the National Assembly".[16]
The Minister's argument was reinforced by evidence we received
which broadly supported the draft Order.[17]
21. The Government is right to ensure that Schedule
7 of the Government of Wales Act 2006 is amended in advance of
the referendum on the transfer of powers to the National Assembly
for Wales. It should be clear to Parliament, the National Assembly
and the people of Wales what powers the National Assembly for
Wales will be able to exercise if the electorate votes "Yes"
in the referendum.
22. Our purpose in this short Report is to seek to
reassure the House of Commons, and others, that the proposed amendments
are appropriate and necessary.
10 Government of Wales Act 2006, s. 95. Back
11
Welsh Affairs Committee: Second Report of Session 2007-08, HC
44; Fourth Report of Session 2007-08, HC 257; Fifth Report of
Session 2007-08, HC 576; Seventh Report of Session 2007-08, HC
812; Third Report of Session 2008-09, HC 5; Sixth Report of Session
2008-09, HC 306; Ninth Report of Session 2008-09, HC 348; Twelfth
Report of Session 2008-09, HC 678; Fourteenth Report of Session
2008-09, HC 778; First Report of Session 2009-10, HC 40; Second
Report of Session 2009-10, HC 142; Fourth Report of Session 2009-10,
HC 36; Sixth Report of Session 2009-10, HC 186; Seventh Report
of Session 2009-10, HC 274; Eighth Report of Session 2009-10,
HC 273. See also Fifth Report of Session 2009-10, Review of
the LCO Process, HC 155. Back
12
For an explanation of the LCO process see Welsh Affairs Committee,
Fifth Report of Session 2009-10, Review of the LCO Process
HC 155. Back
13
Government of Wales Act 2006. Back
14
Ev 14 Back
15
Schedule 7 further differs from Schedule 5 in that it does not
contain "fields", with scope to add "matters"
within those 'fields'.It lists 20 areas of policy which correspond
to the 'fields' in Schedule 5.In Schedule 7 these are called 'subjects',
which are not further broken down other by arrangement into paragraphs. Back
16
Oral evidence taken before the Welsh Affairs Committee on 14 October
2010, HC (2010-11) 495, Q 85 [Mr Jones]. Back
17
Ev 12-14. Back
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