Letter from the Secretary of State for
Wales to the Chair
Thank you for your letter of 1 November seeking
clarification and elaboration on a number of issues relating to
the draft Order.
The attached annex responds to each of the issues
you raised. You will be aware that the draft Order will be considered
in Committee on 23 November. My officials would be happy to brief
Committee members informally before that debate on the content
of the draft Order, and Schedule 7 generally, if that would be
helpful.
APPENDIX
GOVERNMENT RESPONSE
1. The proposed changes to Schedule 7 in
relation to Subjects 5 (education), 9 (health) and 12 (local government)
appear to be substantively narrower than the provisions in corresponding
fields in Schedule 5. Is this the case, and if so, why?
The draft Order does not propose changes to
the subjects listed above. We therefore assume the question is
intending to ask whether the scope of the subjects in Schedule
7 is narrower than the equivalent matters in Schedule 5. The answer
in all three cases is "no".
Schedule 5 and Schedule 7 are drafted differently,
reflecting the different nature of the powers set out in the Schedules.
Schedule 5 describes the current legislative competence of the
Assembly. The competence is set out in matters inserted into 20
fields (or subject areas) in the Schedule, and has developed incrementally
since the Government of Wales Act 2006. Each matter describes
the competence devolved to the Assembly in a specific area of
policy which relates to the field into which the matter is inserted,
and can include specific exceptions which apply to that area of
competence. Matters and associated exceptions can often describe
the boundaries of devolved and non-devolved areas in some detail,
reflecting their relatively narrow scope.
Schedule 7 describes the subjects the Assembly
would be able to legislate on in the event of a "yes"
vote in the referendum and the Assembly Act provisions coming
into force. The subjects and exceptions are often described in
much broader terms than in Schedule 5, reflecting the much wider
scope of legislative competence which the Schedule sets out. So
the fact that some fields in Schedule 5 include a detailed description
of legislative competence, whilst the equivalent paragraph in
Schedule 7 sets out a short description, does not mean that the
scope of Schedule 7 is narrower than that in Schedule 5.
Considering each area in turn:
Education
The Assembly has more extensive legislative
competence over education and training than any other area of
policy. The Assembly's competence is set out in 22 matters in
Field 5 of Schedule 5 to GoWA, which cover most aspects of education
and training policy, including the establishment and management
of schools, curriculum, inspection and post-16 education. 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. This is a function of the Secretary
of State, so the Assembly could not make significant changes without
the consent of the Secretary of State (as a result of the restrictions
and exceptions in Parts 2 and 3 of Schedule 7, which are discussed
in more detail in the answer to question 5 below).
Health
Whilst the Welsh Ministers have extensive executive
powers in relation to health, the current legislative competence
of the Assembly relating to health is restricted to two matters:
the provision of redress for negligence in relation to health
services, and the assessment of mental health and treatment of
mental disorder. The first matter was inserted into Field 9 in
Schedule 5 by the National Assembly for Wales (Legislative Competence)
(Conversion of Framework Powers) Order 2007, and the second by
the Mental Health LCO, brought forward originally by Jonathan
Morgan AM and made in 2009.
Schedule 7 in contrast sets out a broad spectrum
of powers which the Assembly would take on in the event of a "yes"
vote in next year's referendum and the Assembly Act provisions
coming into force. These include the competence the Assembly currently
has, 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.
Local Government
In comparison to health, the Assembly is able
to legislate across a wide spectrum of local government policy.
Field 12 of Schedule 5 lists seventeen matters relating to local
government over which the Assembly can currently legislate, including
the areas, structures and constitution of local government in
Wales, the conduct and remuneration of members, scrutiny and public
participation, and electoral arrangements for community councils.
These matters were inserted into the Schedule through a number
of parliamentary Acts and LCOs, including the Local Government
LCO 2010.
The Assembly's competence over electoral arrangements
for community councils does not extend to the local government
franchise, electoral registration and administration or the voting
system for the return of members in an election.
The Assembly would retain these powers in the
event of the Assembly Act provisions coming into force, and would
also gain powers over local government finance and all powers
and duties of local authorities and their members and officers.
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.
2. What mechanism the Government envisages
there would be for the National Assembly of Wales to request changes
to Schedule 7, if it came into effect following a "yes"
vote in the March 2011 referendum?
It would be open to the Assembly, or the Welsh
Assembly Government, to request changes to Schedule 7 after the
Assembly Act provisions came into force. The Government intends
to consider what would be the most appropriate process for dealing
with such requests. In doing we will consult the Welsh Assembly
Government and other interested parties, including the Welsh Affairs
Committee.
The Coalition's programme for government commits
to "establish a process similar to the Caiman Commission
for the Welsh Assembly", depending on the outcome of
the forthcoming referendum. If the referendum outcome leads to
the establishment of a "Caiman-like" process, the Government
would expect that process to consider whether or not any changes
to the Welsh devolution settlement are needed, which might include
whether any modifications to Schedule 7 should be made.
3. What future role is envisaged by the Government
for the UK Parliament and in particular the Welsh Affairs Committee
in scrutinising proposed amendments to Schedule 7 if it came into
effect following a "yes" vote in the March 2011 referendum?
Section 109 of the Government of Wales Act 2006
provides that Her Majesty may by Order in Council amend Schedule
7. A draft Order must be approved by each House of Parliament
and (except for the first such Order) by the Assembly. The draft
Schedule 7 Amendment Order is the second Order to come forward
under this provision, and so any future Orders seeking to amend
Schedule 7 would require approval from both Houses of Parliament
and from the Assembly.
The Government will consider the most appropriate
process for dealing with any amendments to Schedule 7 which are
proposed after the Assembly Act provisions come into force. However,
it believes that any future proposed Orders would benefit from
pre-legislative scrutiny by the Welsh Affairs Committee, and in
bringing them forward would aim to provide adequate time for such
scrutiny. The Government would also intend to inform the Committee
at the earliest opportunity of any intention to bring forward
an Order to amend Schedule 7.
4. How does the Government plan to revise
the range of documents which set out the practical framework for
managing devolution between Westminster and Wales? In particular,
what changes are envisaged to the Memorandum of Understanding
and the UK Government's Devolution Guidance notes and will the
Welsh Affairs Committee be invited to comment beforehand?
The Government intends to review its devolution
guidance notes and other documentation relating to the Welsh devolution
settlement in light of the outcome of next year's referendum on
full law-making powers. However, we do not expect that the outcome
of the referendum will necessitate changes to the Memorandum of
Understanding, which sets out broad general principles which are
applicable in the different circumstances of each of the devolution
settlements.
5. Will the Government define and list the
powers of Ministers of the Crown as they apply to Wales in the
light of the general restriction which would fall under paragraph
1 of Part 2 to the Order?
Paragraph 1(1) of Part 2 of Schedule 7 provides
that a provision of an Act of the Assembly cannot remove or modify,
or confer power by subordinate legislation to remove or modify,
any pre-commencement function of a Minister of the Crown. Paragraph
1(3) defines a pre-commencement function as one which is exercisable
by a Minister of the Crown before the day on which the Assembly
Act provisions come into force. Paragraph 1(2) goes on to say
that the Assembly cannot confer or impose, or confer power by
subordinate legislation to confer or impose, any function on a
Minister of the Crown.
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).
Subject to these exceptions, this means that
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.
Part 2 of Schedule 5 prevents the Assembly currently
from legislating to modify or remove Minister of the Crown functions,
whether those functions were created before or after the Assembly's
power to pass Measures came into force. However, under Part 3
of the Schedule the Assembly may modify or remove functions if
the Secretary of State consents to the provision. Part 2 of Schedule
5 also provides that an Assembly Measure may not confer or impose
new functions on Ministers of the Crown, even if the Secretary
of State consents (except in relation to the Welsh language).
The Chair of the Committee requested a list
of the powers of Ministers of the Crown as they apply to Wales.
This would involve an examination of the statute book to identify
all relevant Minister of the Crown functions, and would too extensive
an exercise in terms of time and resources for the Wales Office
to undertake. However, we trust that the explanation set out above
provides the Committee with a clear overview of how Minister of
the Crown functions fit within the Welsh devolution settlement.
The Wales Office and relevant Government departments consider
carefully the implications for functions of Ministers of the Crown
on a case by case basis, and will continue to do so.
6. Finally, the Committee would appreciate
a detailed analysis of how each Subject area in Schedule 7 (as
amended) will differ from the legislative competence of the National
Assembly currently enjoyed under Schedule 5
We enclose with this response a copy of Schedule
7 showing the changes which would be made via the draft Order.
A detailed analysis comparing each subject area in Schedule 7
to the equivalent field in Schedule 5 would again be too extensive
an undertaking for the Wales Office to undertake and would, we
believe, add little given the different natures of the schedules.
In general, the Assembly's legislative competence
is described in broader terms in Schedule 7 than in Schedule 5.
This is because Schedule 7 describes the full range of legislative
competence which would be devolved to the Assembly in the event
of a "yes" vote in next year's referendum and the Assembly
Act provisions coming into force. Those descriptions are necessarily
broad brush given the breadth of the powers involved. Schedule
5 in contrast describes the specific areas of competence which
the Assembly has currently, and usually provides a more detailed
description of that competence given its much narrower scope.
There are six fields in Schedule 5 which do
not currently contain any matters. These are Field 4 (economic
development), Field 7 (fire and rescue services and fire safety),
Field 8 (food), Field 14 (public administration), Field 17 (tourism)
and Field 19 (water and flood defence). No comparison can therefore
be drawn between Schedule 7 and Schedule 5 in these areas.
Of the remaining 14 fields, the Assembly's current
powers in some are relatively narrow. In our response to question
1, we explained that the Assembly's current powers in health include
only the provision of redress in
health services and the assessment of mental health
and assessment of mental disorder. In contrast, the Assembly's
powers under Schedule 7 would include most aspects of health policy,
including health promotion, the provision of health services and
the organisation and funding of the NHS.
There are other subject areas where the Assembly
legislative competence would also broaden significantly in the
event of Schedule 7 coming into force. For example, the Assembly's
current legislative competence in Field 1 (agriculture, fisheries,
forestry and rural development) is confined to the improvement
and promotion of the red meat industry. The Assembly's competence
under Schedule 7 would be significantly broader, and would include
most aspects of agriculture, horticulture, fisheries, forestry
and rural development. Similarly, in Field 18 (planning), the
Assembly's current powers extend only to making provision relating
to national and local plans. Under Schedule 7, the Assembly's
powers to legislate on planning would include almost all aspects
of town and country planning, including development control, listed
buildings, conservation areas and hazardous substances.
In our response to question 1, we also highlighted
two areas where the Assembly already has significant powers—education
and training and local government. In these areas there is not
such a dramatic difference between the legislative competence
in Schedule 5 (the Assembly's current powers) and that in Schedule
7 (the Assembly's powers following a referendum "yes"
vote). In both cases however the powers set out in Schedule 7
are broader than the powers the Assembly currently exercises under
Schedule 5.
Similarly, the Assembly has significant current
powers in Field 15 (social welfare) which include most, but not
all, of the subjects listed in the equivalent paragraph of Schedule
7. It also has wide ranging powers over housing (Field 11), though
importantly Schedule 7 would also include legislative competence
over housing finance, the private rented sector and the regulation
of rent, none of which the Assembly can legislate on currently.
In conclusion, the extent of additional powers
which would be devolved to the Assembly if Schedule 7 came into
force varies significantly between the various fields in Schedule
5 and subjects in Schedule 7. But in all cases, the Assembly would
be able to legislate in a broader range of areas than it can at
present.
15 November 2010
Annex from Secretary of State for Wales
GOVERNMENT OF WALES ACT 2006—SCHEDULE
7—ACTS OF THE ASSEMBLY
(This document shows Schedule 7 as it currently
stands, with the proposed amendments to be made by the National
Assembly for Wales (Legislative Competence) (Amendment of Schedule
7 to the Government of Wales Act 2006) Order 2010. Text which
would be inserted by that Order is shown underlined; text which
would be deleted is shown struck through.)
PART 1
SUBJECTS
Agriculture, fisheries,
forestry, animals, plants and rural development
1 Agriculture, including animal health
and welfare. Plant health. Plant varieties and seeds. Horticulture.
Fisheries. Fish health. Forestry. Rural development.
1 Agriculture. Horticulture. Forestry.
Fisheries and fishing. Animal health and welfare. Plant health.
Plant varieties and seeds. Rural development.
In this Part of this Schedule "animal"
means—
(a) all mammals apart from humans,
and
(b) all animals other than mammals;
and related expressions are to
be construed accordingly.
Exceptions—
Regulation of scientific or other experimental
procedures on animals.
Import and export control, and regulation of
movement, of animals, plants and other things, apart from (but
subject to provision made by or by virtue of any Act of Parliament
relating to the control of imports or exports)—
(a) the movement into and out of, and within,
Wales of animals, animal products, fish, fish products,
plants, plant products and other things related to them for
the purposes of protecting human, animal, fish
or plant health, animal welfare or the environment or observing
or implementing obligations under the Common Agricultural Policy,
and
(b) the movement into and out of, and within,
Wales of animal feedstuff, fish feedstuff, fertilisers
and pesticides (or things treated by virtue of any enactment as
pesticides) for the purposes of protecting human, animal, fish
or plant health or the environment.
Authorisations of veterinary medicines and medicinal
products.
Ancient monuments and historic buildings
2 Archaeological remains. Ancient monuments.
Buildings and places of historical or architectural interest.
Historic wrecks.
Culture
3 Arts and crafts. Museums and galleries.
Libraries. Archives and historical records. Cultural activities
and projects.
Public lending right.
Broadcasting.
Classification of films, and video recordings.
Government indemnities for objects on loan.
Payments to Her Majesty's Revenue and Customs
in respect of property accepted in satisfaction of tax, apart
from property in which there is a Welsh national interest.
Economic development
4 Economic regeneration and development,
including social development of communities, reclamation of derelict
land and improvement of the environment. Promotion of business
and competitiveness.
Fiscal, economic
and monetary policy and regulation of international trade.
Regulation of anti-competitive practices and
agreements, abuse of dominant position and monopolies and mergers.
Intellectual property, apart from plant varieties.
Creation, operation, regulation and dissolution
of types of business association.
Insolvency.
Product standards, safety and liability, apart
from in relation to food (including packaging and other materials
which come into contact with food), agricultural and horticultural
products, fish and fish products, animals
and animal products, seeds, fertilisers and pesticides (and
things treated by virtue of any enactment as pesticides).
Consumer protection, including the sale and
supply of goods to consumers, consumer guarantees, hire purchase,
trade descriptions, advertising and price indications, apart from
in relation to food (including packaging and other materials which
come into contact with food), agricultural and horticultural products,
fish and fish products, animals and animal
products, seeds, fertilisers and pesticides (and things
treated by virtue of any enactment as pesticides).
Financial services, including investment business,
banking and deposit-taking, collective investment schemes and
insurance.
Occupational and personal pension schemes (including
schemes which make provision for compensation for loss of office
or employment, compensation for loss or diminution of emoluments,
or benefits in respect of death or incapacity resulting from injury
or disease), apart from schemes for or in respect of Assembly
members, the First Minister, Welsh Ministers appointed under section
48, the Counsel General or Deputy Welsh Ministers and schemes
for or in respect of members of local authorities.
Financial markets,
including listing and public offers of securities and investments,
transfers of securities, insider dealing and money laundering.
Telecommunications, wireless telegraphy (including
electromagnetic disturbance), internet services and electronic
encryption.
Postal services, post offices and the Post
Office, apart from financial assistance for the provision of services
(other than postal services and services relating to money or
postal orders) to be provided from public post offices.
Generation, transmission, distribution
and supply of electricity.
Energy conservation, apart from the encouragement
of energy efficiency otherwise than by prohibition or regulation.
Coal, including mining and subsidence, apart
from land restoration and other environmental matters.
Oil and gas.
Nuclear energy and nuclear installations—
(a) including nuclear safety and liability
for nuclear occurrences;
(b) but not including disposal of
very low level radioactive waste moved from a site requiring a
nuclear site licence.
Units and standards
of weights and measurement and the regulation of trade so far
as involving weighing, measuring and quantities.
Industrial Development Advisory Board.
Education and training
5 Education, vocational, social and physical
training and the careers service. Promotion of advancement and
application of knowledge.
Exception—
Environment
6 Environmental protection, including pollution,
nuisances and hazardous substances. Collection, management
and disposal of waste. Prevention, reduction, collection,
management, treatment and disposal of waste. Land drainage
and land improvement. Countryside and open spaces (including the
designation and regulation of national parks and areas of outstanding
natural beauty). Nature conservation and sites of special scientific
interest. Protection of natural habitats, coast and marine environment
(including seabed). Biodiversity. Genetically modified organisms.
Smallholdings and allotments. Common land. Town and village greens.
Burial and cremation, except coroners' functions.
Fire and rescue services and promotion
of fire safety
7 Fire and rescue services. Provision
of automatic fire suppression systems in newly constructed and
newly converted residential premises. Promotion
of fire safety otherwise than by prohibition or regulation.
Food
8 Food and food products. Food safety (including
packaging and other materials which come into contact with food).
Protection of interests of consumers in relation to food.
"Food" includes drink.
Health and health services
9 Promotion of health. Prevention, treatment
and alleviation of disease, illness, injury, disability and mental
disorder. Control of disease. Family planning. Provision of health
services, including medical, dental, ophthalmic, pharmaceutical
and ancillary services and facilities. Clinical governance and
standards of health care. Organisation and funding of national
health service.
Exceptions—
Human genetics, human fertilisation, human embryology,
surrogacy arrangements.
Regulation of health professionals (including
persons dispensing hearing aids).
Misuse of and dealing in drugs.
Human medicines and medicinal products, including
authorisations for use and regulation of prices.
Standards for, and testing of, biological substances
(that is, substances the purity or potency of which cannot be
adequately tested by chemical means).
Health and Safety Executive and Employment Medical
Advisory Service and provision made by health and safety regulations.
Highways and transport
10 Highways, including bridges and tunnels.
Streetworks. Traffic management and regulation. Transport facilities
and services.
Exceptions—
Registration of local bus services, and the application
and enforcement of traffic regulation conditions in relation to
those services.
Road freight transport services, including goods
vehicles operating licensing.
Regulation of use of motor vehicles and trailers
on roads, their construction and equipment and conditions under
which they may be so used, apart from regulation of use of vehicles
carrying animals for the purposes of protecting human, animal,
fish or plant health, animal welfare or the environment.
Regulation of the construction and equipment
of motor vehicles and trailers, and regulation of the use of motor
vehicles and trailers on roads, apart from—
(a) any such regulation which—
(i) relates to schemes for imposing charges
in respect of the use or keeping of vehicles on Welsh trunk roads
("trunk road charging schemes"), or
(ii) relates to the descriptions of motor
vehicles and trailers which may be used under arrangements for
persons to travel to and from the places where they receive education
or training, unless the regulation is the setting of technical
standards for construction or equipment of motor vehicles or trailers
which differ from the standards that would or might otherwise
apply to them; and
(b) regulation of the use of motor vehicles
and trailers carrying animals for the purpose of protecting human,
animal or plant health, animal welfare or the environment.
Insurance of motor vehicles.
Traffic regulation on special roads, pedestrian
crossings, traffic signs and speed limits.
Traffic regulation on special roads, apart
from regulation relating to trunk road charging schemes.
Pedestrian crossings.
Traffic signs, apart from the placing and
maintenance of traffic signs relating to trunk road charging schemes.
International road transport services for passengers.
Public service vehicle operator licensing.
Documents relating to vehicles and drivers for
purposes of travel abroad and vehicles brought temporarily into
Wales by persons resident outside the United Kingdom.
Vehicle excise duty and vehicle registration.
Provision and regulation of railway services,
apart from financial assistance which—
(a) does not relate to the carriage of goods,
(b) is not made in connection with a railway
administration order, and
(c) is not made in connection with Council Regulation
(EEC) No 1191/69 as amended by Council Regulation (EEC)
No 1893/91 on public service obligations in transport
Regulation (EC) No 1370/2007 of the European Parliament and
of the Council on public passenger transport services by rail
and by road.
Transport security, apart from regulation
relating to the carriage of adults who supervise persons travelling
to and from the places where they receive education or training.
Aviation, air transport, airports and aerodromes,
apart from—
(a) financial assistance to providers or proposed
providers of air transport services or airport facilities or ser-vices,
(b) strategies by the Welsh Ministers or local
or other public authorities about provision of air services, and
(c) regulation of use of aircraft carrying animals
for the purposes of protecting human, animal, fish or plant
health, animal welfare or the environment.
(a) financial assistance for shipping services
to, from or within Wales, and
(b) regulation of use of vessels carrying animals
for the purposes of protecting human, animal, fish or plant
health, animal welfare or the environment.
Navigational rights and freedoms, apart from
regulation of works which may obstruct or endanger navigation.
Technical and safety standards of vessels.
Harbours, docks, piers and boatslips, apart from—
(a) those used or required wholly or mainly
for the fishing industry, for recreation, or for communication
between places in Wales (or for two or more of those purposes),
and
(b) regulation for the purposes of protecting
human, animal, fish or plant health, animal
welfare or the environment.
Carriage of dangerous goods (including transport
of radioactive material).
Technical specifications for fuel for use
in internal combustion engines.
Housing
11 Housing. Housing finance except schemes
supported from central or local funds which provide assistance
for social security purposes to or in respect of individuals by
way of benefits. Encouragement of home energy efficiency and conservation,
otherwise than by prohibition or regulation. Regulation of rent.
Homelessness. Residential caravans and mobile homes.
Local government
12 Constitution, structure and areas of
local authorities. Electoral arrangements for local authorities.
Powers and duties of local authorities and their members and officers.
Local government finance.
"Local authorities" does not include police
authorities.
Exceptions—
Local government franchise.
Electoral registration and administration.
Registration of births, marriages, civil partnerships
and deaths.
Licensing of sale and supply of alcohol, provision
of entertainment and late night refreshment.
Anti-social behaviour orders.
Local land charges, apart from fees.
Provision of advice and assistance overseas by
local authorities in connection with carrying on there of local
government activities.
National Assembly for Wales
13 Complaints about Assembly members (including
provision for and about an office or body for investigating such
complaints and reporting outcome of investigations). Assembly
Commission. Salaries, allowances, pensions and gratuities for
and in respect of Assembly members, the First Minister, Welsh
Ministers appointed under section 48, the Counsel General and
Deputy Welsh Ministers. Register of interests of Assembly members
and the Counsel General. Meaning of Welsh words and phrases in
Assembly Measures and Acts of the Assembly, in subordinate legislation
made under Assembly Measures and Acts of the Assembly and in other
subordinate legislation if made by the Welsh Ministers, the First
Minister or the Counsel General. Private legislation in the Assembly.
Financial assistance for political groups to which Assembly members
belong. The Welsh Seal. Arrangements for the printing of Acts
of the Assembly, of subordinate legislation made under Assembly
Measures and Acts of the Assembly and of other subordinate legislation
if made by the Welsh Ministers, the First Minister or the Counsel
General.
Public administration
14 Public Services Ombudsman for Wales.
Audit, examination, regulation and inspection of auditable public
authorities. Inquiries in respect of matters in relation to which
the Welsh Ministers, the First Minister or the Counsel General
exercise functions. Equal opportunities in relation to equal opportunity
public authorities. Access to information held by open access
public authorities.
The following are "auditable public authorities"
and "equal opportunity public authorities"—
(a) the Assembly,
(b) the Assembly Commission,
(c) the Welsh Assembly Government,
(d) persons who exercise functions of a public
nature and in respect of whom the Welsh Ministers exercise functions,
(e) persons who exercise functions of a public
nature and at least half of the cost of whose functions in relation
to Wales are funded (directly or indirectly) by the Welsh Ministers,
and
(f) persons established by enactment and having
power to issue a precept or levy.
The following are "open access public authorities"—
(a) the Assembly,
(b) the Assembly Commission,
(c) the Welsh Assembly Government, and
(d) authorities which are Welsh public authorities,
within the meaning of the Freedom of Information Act 2000 (c 36).
Exception—
Regulation of the profession of auditor.
Social welfare
15 Social welfare including social services.
Protection and well-being of children (including adoption and
fostering) and of young adults. Care
of children, young adults, vulnerable persons and older
persons, including care standards. Badges for display on motor
vehicles used by disabled persons.
Exceptions—
Child trust funds, apart from subscriptions
to such funds by—
(a) a county council or county borough
council in Wales, or
(b) the Welsh Ministers.
Child benefit and guardian's allowance.
Independent Living Funds.
Intercountry adoption, apart from adoption agencies
and their functions, and functions of "the Central Authority"
under the Hague Convention on Protection of Children and Co-operation
in respect of Intercountry Adoption.
The Children's Commissioner (established under
the Children Act 2004 (c 31)).
Family law and proceedings, apart from—
(a) welfare, advice welfare
advice to courts, representation and provision of information,
advice and other support to children ordinarily resident in Wales
and their families, and
(b) Welsh family proceedings officers.
Sport and recreation
16 Sport and recreational activities.
Exception—
Betting, gaming and lotteries.
Tourism
17 Tourism.
Town and country planning
18 Town and country planning, including
listed buildings and conservation areas. Caravan sites. Spatial
planning. Mineral workings. Urban development. New towns. Protection
of visual amenity.
Exception—
Functions of the Infrastructure Planning
Commission or any of its members under the Planning Act 2008.
Water and flood defence
19 Water supply, water resources management
(including reservoirs), water quality and representation of consumers
of water and sewerage services. Flood risk management and coastal
protection.
Exceptions—
Appointment and regulation of any water undertaker
whose area is not wholly or mainly in Wales.
Licensing and regulation of any licensed water
supplier within the meaning of the Water Industry Act 1991 (c
56), apart from regulation in relation to licensed activities
using the supply system of a water undertaker whose area is wholly
or mainly in Wales.
Welsh language
20 Welsh language
Exception—
Use of the Welsh language in courts.
PART 2
GENERAL RESTRICTIONS
Functions of a Minister of the Crown
1 (1) A provision of an Act of the Assembly
cannot remove or modify, or confer power by subordinate legislation
to remove or modify, any pre-commencement function of a Minister
of the Crown.
(2) A provision of an Act of the Assembly
cannot confer or impose, or confer power by subordinate legislation
to confer or impose, any function on a Minister of the Crown.
(3) In this Schedule "pre-commencement
function" means a function which is exercisable by a Minister
of the Crown before the day on which the Assembly Act provisions
come into force.
Enactments other than this Act
2 (1) A provision
of an Act of the Assembly cannot make modifications of, or confer
power by subordinate legislation to make modifications of, any
of the provisions listed in the Table below—
TABLE
| Enactment | Provisions protected from modification
|
European Communities Act 1972 (c 68)
| The whole Act |
| Data Protection Act 1998 (c 29) | The whole Act
|
| Government of Wales Act 1998 (c 38) | Sections 144(7), 145, 145A and 146A(1)
|
| Human Rights Act 1998 (c 42) | The whole Act
|
| Civil Contingencies Act 2004 (c 36) | The whole Act
|
Re-Use of Public Sector Information
Regulations 2005 (SI 2005/1505)
| The whole set of Regulations |
(2) Sub-paragraph (1) does not apply to any provision making modifications, or conferring power by subordinate legislation to make modifications, of section 31(6) of the Data Protection Act 1998 so that it applies to complaints under an enactment relating to the provision of redress for negligence in connection with the diagnosis of illness or the care or treatment of any patient (in Wales or elsewhere) as part of the health service in Wales.
3 A provision of an Act of the Assembly cannot make modifications of, or confer power by subordinate legislation to make modifications of, any provision of an Act of Parliament other than this Act which requires sums required for the repayment of, or the payment of interest on, amounts borrowed by the Welsh Ministers to be charged on the Welsh Consolidated Fund.
4 A provision of an Act of the Assembly cannot make modifications of, or confer power by subordinate legislation to make modifications of, any functions of the Comptroller and Auditor General.
| |
This Act
5 (1) A provision of an Act of the Assembly cannot
make modifications of, or confer power by subordinate legislation
to make modifications of, provisions contained in this Act.
(2) Sub-paragraph (1) does not apply to sections
20, 22, 24, 36(1) to (5) and (7) to (11), 53, 54, 146, 147, 148
and 156(2) to (5).
(2) Sub-paragraph (1) does not apply to the
following provisions—
(a) sections 20, 22, 24, 35(1), 36(1) to (5) and (7)
to (11), 53, 54, 78, 146, 147, 148 and 156(2) to (5);
(b) paragraph 8(3) of Schedule 2.
(3) Sub-paragraph (1) does not apply to any provision—
(a) making modifications of so much of any enactment as is
modified by this Act, or
(b) repealing so much of any provision of this Act as amends
any enactment, if the provision ceases to have effect in consequence
of any provision of, or made under, an Act of the Assembly.
PART 3
EXCEPTIONS FROM
PART 2
Functions of Ministers of the Crown
6 (1) Part 2 does not prevent a provision of an Act
of the Assembly removing or modifying, or conferring power by
subordinate legislation to remove or modify, any pre-commencement
function of a Minister of the Crown if—
(a) the Secretary of State consents to the provision, or
(b) the provision is incidental to, or consequential on,
any other provision contained in the Act of the Assembly.
(2) Part 2 does not prevent a provision of an Act
of the Assembly conferring or imposing, or conferring power by
subordinate legislation to confer or impose, any function on a
Minister of the Crown if the Secretary of State consents to the
provision.
Comptroller and Auditor General
7 Part 2 does not prevent a provision of an Act of the
Assembly modifying, or conferring power by subordinate legislation
to modify, any enactment relating to the Comptroller and Auditor
General if the Secretary of State consents to the provision.
Restatement
8 Part 2 does not prevent an Act of the Assembly—
(a) restating the law (or restating it with such modifications
as are not prevented by that Part), or
(b) repealing or revoking any spent enactment,
or conferring power by subordinate legislation to do
so.
Subordinate legislation
9 Part 2 does not prevent an Act of the Assembly making
modifications of, or conferring power by subordinate legislation
to make modifications of, an enactment for or in connection with
any of the following purposes—
(a) making different provision about the document by which
a power to make, confirm or approve subordinate legislation is
to be exercised,
(b) making provision (or no provision) for the procedure,
in relation to the Assembly, to which legislation made in the
exercise of such a power (or the instrument or other document
in which it is contained) is to be subject, and
(c) applying any enactment comprised in or made under an
Act of the Assembly relating to the documents by which such powers
may be exercised.
November 2010
| 
