3 Schedule 7 as amended
23. A detailed analysis of the proposed amendments
to Schedule 7 identifies a number of areas where Schedule 7, as
amended, appears to diverge in a minor and technical way from
Schedule 5 as it currently stands.
Cases where the provisions of
Schedule 7 are narrower than Schedule 5
24. There are a number of instances where the draft
Order does not make changes to Schedule 7, but where legislative
powers have been conferred on the Assembly through Acts of Parliament
or Legislative Competence Orders. This could imply that the powers
of the Assembly following a referendum might be narrower than
the ones it already enjoys. We wrote to the Secretary of State
seeking clarification in the following three areas:
- Education and training (Field
15/subject 9);
- Health and health services (Field/subject 9);
and
- Local government (Field/subject 12).
In each of these cases, our concern was about whether
the generality of the powers conferred under Schedule 7 would
include the specific issues covered in Schedule 5.[18]
Ultimately, if the Assembly were to legislate on such questions
and its legislation was to be challenged, it would be a matter
for the courts to determine whether this was so. It would be clearly
undesirable should the courts become involved in this area.
25. On Education, the Secretary of State's response
was:
The equivalent subjects in Schedule 7 are described
in very broad terms, and would devolve power to the Assembly to
legislate on almost all aspects of education and training policy,
including the limited number of areas over which the Assembly
cannot currently legislate - for example the careers service and
higher education. In addition, there are two significant areas
of education policy on which the Assembly cannot currently legislate,
and which would remain non-devolved in the event of a "yes"
vote in the referendum and the Assembly Act provisions coming
into force. The first is research councils, for which there is
an exception in paragraph 5 of Schedule 7. The second is the setting
of teachers' pay and conditions.[19]
26. On Health, we were told:
Schedule 7 in contrast sets out a broad spectrum
of powers which the Assembly would take on in the event of […]
the Assembly Act provisions coming into force. These include the
competence the Assembly currently has (the provision of redress
for negligence in relation to health services, and the assessment
of mental health and treatment of mental disorder), and new areas
of legislative competence including the promotion of health; the
prevention, treatment and alleviation of disease and the provision
of health services. The Schedule also includes a number of exceptions
to this competence, including abortion, human genetics and the
regulation of health professionals, which will remain non-devolved.[20]
27. On Local Government, the Secretary of State's
response stated that, in addition to its existing powers under
Schedule 5, the Assembly:
… would also gain powers over local government
finance and all powers and duties of local authorities and their
members and officers.[21]
She also noted that these powers would continue to
be subject to exceptions for franchise, registration and administration
and the voting system, and to a number of further exceptions to
ensure areas such as alcohol licensing, Sunday trading and anti-social
behaviour orders remain non-devolved.
28. Our analysis also identified a number of other
cases where powers of more limited scope have been conferred on
the Assembly so far but where it is unclear whether these powers
would arise under Schedule 7. For example, in Field/subject 15
(Social welfare), there were concerns relating to the power for
local authorities to charge for social care services other than
residential care, and to provide for advocacy services in cases
where mental capacity is at issue.
29. We also invited the Secretary of State to comment
on the scope of the whole of Schedule 7, identifying those areas
where it differed from the scope of Schedule 5.
30. The Secretary of State told us that Schedule
5 is drafted so precisely as a consequence of the incremental
addition of powers conferred on the NAW since 2006 by way of LCOs
so that:
The subjects and exceptions [in Schedule 7] are often
described in much broader terms than in Schedule 5, reflecting
the much wider scope of legislative competence which the Schedule
sets out.[22]
The Secretary of State's acknowledgement that Schedule
7 would confer broader powers on the National Assembly than it
currently exercised is set out in some detail in her response
with relation to Education, Health and Local Government.[23]
She also confirmed that in no case were the powers under Schedule
7 narrower than the current powers enjoyed by the National Assembly
under Schedule 5.
31. Were it to be put into effect, Schedule 7,
as amended, would confer broader powers on the National Assembly
for Wales than currently exercised under Schedule 5. We have identified
no immediate need for any further protection of the current legislative
competence of the National Assembly.
Powers of Ministers of the Crown
32. Paragraph 1 of Schedule 7 provides that the
Assembly cannot remove or modify, or impose or confer, functions
of a Minister of the Crown existing before the Assembly Act provisions
came into force. However, those powers are not defined or listed
anywhere. They are scattered across the statute book, and in
some cases where they arise under the royal prerogative cannot
be readily identified at all. The changes proposed to Schedule
7 do not include any definition of the powers of Minister of the
Crown. There is a risk, therefore, that this provision could lead
to some uncertainty about the limits on the extent of the National
Assembly's legislative powers.
33. In proposing amendments to Schedule 7, it might
have been an opportunity to bring some clarity about the extent
of Ministers' powers in relation to the NAW. However, the Secretary
of State told us that to have done so would have involved "an
examination of the statute book to identify all relevant Minister
of the Crown functions, and [would have been] too extensive an
exercise in terms of time and resources for the Wales Office to
undertake".[24]
She noted, however, that:
By virtue of paragraph 6 in Part 3 of Schedule 7,
these restrictions do not apply if the Secretary of State consents
to the relevant Assembly Act provision (or, in the case of a provision
removing or modifying pre-commencement functions, if the provision
is incidental or consequential).[25]
And she also explained that:
Subject to these exceptions […] the Assembly
could neither legislate to impose new functions on a Minister
of the Crown nor to change any existing function which Ministers
of the Crown exercise at the time the Assembly Act provisions
come into force. But the Assembly could legislate to change a
function which is conferred on a Minister of the Crown after the
Assembly Act provisions are commenced, without needing the Secretary
of State's consent, so long as the legislation relates to one
or more of the subjects in Schedule 7. In the event of the Assembly
Act provisions being commenced, we would expect the Welsh Assembly
Government to work closely with the Government on any proposal
to remove functions of Ministers of the Crown in devolved areas.
The Government would also expect to be consulted by the Welsh
Assembly Government on any proposal to change the functions of
a Minister of the Crown by an Act of the Assembly.[26]
34. We note that the Government has not used this
opportunity to define more clearly the powers of Ministers in
relation to the National Assembly for Wales on the grounds of
time and cost. However, we also note that there would be scope
for the National Assembly to legislate on the powers of Ministers
of the Crown in certain circumstances, with and sometimes without
the consent of the Secretary of State.
18 Issues of particular concern to us include the Assembly's
present power to provide transport for learners to the places
where they receive education or training; powers relating to the
provision of redress and compensation to victims of alleged medical
negligence, and such local government functions as the direct
election of executives, and the making of bye-laws. Back
19
Ev 2 Back
20
Ev 2 Back
21
Ibid. Back
22
Ev 1 Back
23
Ibid. Back
24
Ev 4 Back
25
Ev 3 Back
26
Ibid. Back
| 
