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

4  Managing the post-referendum settlement

Devolution guidance notes

35. The Memorandum of Understanding between the UK Government and devolved administrations is key to the overall relationship between the administration in Cardiff and the UK Government.[27] However, for many practical purposes, the Memorandum of Understanding lacks specific detail. This is provided by the Devolution Guidance Notes detailing working relations between UK and Welsh governments. Of particular importance are Devolution Guidance Note 4 on the Role of the Secretary of State for Wales and Note 9 on post-devolution primary legislation affecting Wales. The Report of our predecessors, Wales in Whitehall, identified a number of areas of friction in Government where devolution protocols were not given sufficient consideration.[28]

36. Following any affirmative outcome in the referendum, and any consequential increase in legislative competence, it would be necessary for the Government to update these notes and to refresh the actual relationship between the different parties to the settlement. It would also need to replace Devolution Guidance Note 16, which is concerned with orders under section 95 of the Government of Wales Act 2006 relating to the making of Legislative Competence Orders.

37. The Government told us that it would update the Devolution Guidance notes "in light of the outcome of next year's referendum".[29] However, the Secretary of State did not "expect that the outcome of the referendum will necessitate changes to the Memorandum of understanding".[30]

38. The Devolution Guidance notes, which set out the working arrangements between the UK Government and the devolved administrations, are key to the administrative and the constitutional relationship between the administration in Cardiff and the UK Government. Clearly, these constitutional arrangements would have to be changed if there were a "Yes" vote in the referendum in March 2011. We recommend that in those circumstances, the Welsh Affairs Committee be consulted during the process of the revision of these documents.

Mechanisms for changing Schedule 7 in the future


39. Schedule 5 to the Government of Wales Act 2006 has been amended in two ways since 2006; by Acts of Parliament and by Legislative Competence Orders (LCOs). LCOs are normally proposed by the Welsh Assembly Government (WAG), but can also be proposed by a backbench Assembly Member or an Assembly committee.[31]

40. Following WAG-proposed LCOs there is a period of negotiation between WAG and the UK Government to agree on a text that the Government will be willing to lay before Parliament. When a text is ready, the Secretary of State for Wales lays a proposed draft LCO before Parliament and refers it to Welsh Affairs Committee and the House of Lords Constitution Committee for pre-legislative scrutiny. The LCO is also laid before the Assembly and referred to one of its committees for scrutiny. Following these pre-legislative stages, a draft Order proposed by the National Assembly is laid before Parliament for approval in the manner of an affirmative statutory instrument. In the Commons this has been normally debated in a delegated legislation committee.


41. Section 109 of the 2006 Act provides a general power for the Secretary of State to amend Schedule 7. There are no limits on what amendments might be made in this way, or in the timing of them. However, any Order doing so would require the approval of both Houses of Parliament, and of the National Assembly. It therefore could not be used without the consent of the House of Commons.

42. Under the Government of Wales Act 2006, the National Assembly has no power formally to propose changes to Schedule 7. It is not clear what role, if any, would be taken by the Welsh Affairs Committee in consideration of any proposal to amend Schedule 7.

43. Further matters might also be devolved by Act of Parliament. Primary legislation has been used when substantial additional functions have been devolved to both Scotland and Northern Ireland - even though similar order-making powers to that in Wales exist in both systems. However, as we noted above, the devolution settlement with Wales is of a different nature. Because it is based on transfers of powers from Westminster to Wales, rather than on a definition of "reserved" matters, it seems likely that there may be more frequent need, even if Schedule 7 comes into effect, for detailed adjustment of the legislative competence of the Assembly on a scale which would not normally justify primary legislation.

44. The Secretary of State told us that the Government intended to consult the Welsh Assembly Government and the Welsh Affairs Committee before deciding how to deal with any requests from the National Assembly to amend Schedule 7.[32]

45. The Government has made clear that the Welsh Affairs Committee will be consulted on how requests from the National Assembly for Wales should be dealt with in the event of Schedule 7 coming into effect following a "Yes" vote in a referendum. We consider that any future conferral of legislative power on the National Assembly should have the consent of both Parliament and the Assembly itself, whatever means is used to achieve that end.

27   Cm 7864 Back

28   Welsh Affairs Committee, Eleventh Report of Session 2009-10, Wales and Whitehall HC 246 Back

29   Ev 3 Back

30   IbidBack

31   The LCO process has existed since 2007 and 15 LCOs have reached Parliament to date. Most of these LCOs have been backed by the Welsh Assembly Government, but there have been 2 backbench LCOs and the one committee-sponsored LCO has passed through its stages in the National Assembly. Back

32   Ev 3 Back

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