The proposed amendment of Schedule 7 to the Government of Wales Act 2006 - Welsh Affairs Committee Contents

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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Prepared 22 November 2010