Written evidence from Manon George and
David Lambert, Legal Members of the Wales Governance Centre of
Cardiff University
The Wales Governance Centre comprises a group
of academic members from Cardiff Law School and Cardiff School
of European Studies. We monitor and comment upon developments
in Welsh Devolution. We are responding to the invitation of the
Welsh Affairs Select Committee to give evidence on this draft
Order.
INTRODUCTION
From paragraph 7.1 of the Explanatory Memorandum
prepared by the Wales Office in relation to this draft Order,
it is noted that the purpose of the Order is to reflect in amendments
to Schedule 7 of the Government of Wales Act 2006 the legislative
competence which has been conferred on the Assembly by current
Legislative Competence Orders. A second purpose is to update references
in Schedule 7 and to make amendments clarifying some subject and
exceptions.
We note that in many respects the draft Order
fulfils the objective of paragraph 7.1. However it seems that
there are certain exceptions in Legislative Competence Orders
which constrain the Assembly's powers to make Measure under those
Orders, but which are not reflected in the draft Order. There
is no apparent reason given as to why the draft Order does not
reflect these exceptions. As we understand the present exceptions
which are set out in the various Matters in Schedule 5, the purpose
is to reflect powers which are retained by Central Government
in relation to Wales in respect of items within such Matters which
would otherwise come within the jurisdiction of the Assembly's
legislative powers. If we are right in this assumption it is not
clear to us the reason for omitting these exceptions set out in
the amendments to Schedule 7 made in the draft Order. As we understand
the situation, merely because an item is excepted from a subject
area in Schedule 7 does not mean that its omission allows the
Assembly to legislate in relation to such item.
Paragraph 1(1) of Part 2 of Schedule 7 prevents
the Assembly from legislating under Schedule 7 in such a way as
to remove or modify any function exercisable by a Central Government
Minister prior to the coming into force of the provisions of Schedule
7.
Although a Central Government Minister under
paragraph 6(1) of Part 3 of Schedule 7 can consent to the Assembly
removing or modifying such a Central Government power, without
such consent the Assembly cannot legislate in relation to such
a function. The problem seems to be that paragraph 1(1) of Part
2 of Schedule 7 prevents the Assembly exercising its legislative
powers in relation so as to affect the powers of Central Government
Ministers. This is so, whether or not such powers are expressly
set out as exceptions in Part 1 of Schedule 7.
Unless there are such express exception in Part
1 of Schedule 7, it is difficult to ascertain the extent of the
Central Government powers in relation to Wales because these are
not listed elsewhere other than to a certain extent in the Wales
Governance Centre's website, Wales Legislation Online.
We set out below what appears to be exceptions
arising in Legislative Competence Orders in Schedule 5 which are
not reflected in the provisions of the draft Order amending Schedule
7.
1. SUBJECT 3:
CULTURE
The National Assembly for Wales (Legislative
Competence) (Culture and Other Fields) Order SI 2010/1212 has
an exception preventing the Assembly from legislating on the "licensing
of sale and supply of alcohol, provision of entertainment and
late night refreshment". The exception in the LCO may reflect
the powers of the Home Office in relation to these matters, if
so, we are not sure why this exception is not reflected in Subject
3 of Schedule 7.
2. SUBJECT 6:
ENVIRONMENT
The present LCO was inserted in Schedule 5 Field
6 by the National Assembly for Wales (Legislative Competence)(Environment)
Order SI 2010/248.
Looking at the description of Environment in
Schedule 7 it was with considerable surprise that the Environment
LCO was made in the way it is expressed. The Order gives legislative
competence to the Assembly in four Matters and then proceeds in
relation to each Matter to take away that legislative competence
by very specific and not general exceptions sometimes making exceptions
to those exceptions, and in some cases making exceptions to the
exceptions to the exceptions.
It is understood that the exceptions to this
LCO are a statement of what is considered to be the continuing
functions of Central Government in relation to the areas set out
in the four Matters in the LCO. The absence of such exceptions
being inserted into the Environment Subject 6 in Part 1 of Schedule
7 does not mean that the Assembly would necessarily have no exceptions
to the apparently wide legislative powers given in this Schedule
7 subject. All legislative powers in Schedule 7 are not only subject
to the exceptions set out on the face of Part 1 of Schedule 7
they are also subject to paragraph 1(1) of Part 2 of Schedule
7.
It seems that the effect of not carrying forward
into Schedule 7 in the new Draft Order the considerable exceptions
to the Assembly's legislative powers in relation to areas of the
Environment is to make it more difficult to ascertain to what
exceptions the Assembly would be subject under its Environment
legislative powers in Schedule 7.
3. SUBJECT 9:
HEALTH AND
HEALTH SERVICES
In Schedule 5 Matter 9.2 introduced by the National
Assembly for Wales (Legislative Competence)(Health and Health
Services and Social Welfare) Order SI 2010/236 there are a series
of exceptions to the Assembly's power to legislate on the "assessment
of mental health and treatment of mental disorder". The draft
Order amending Schedule 7 does not reflect these exceptions.
4. SUBJECT 10:
HIGHWAYS AND
TRANSPORT
There is no apparent exception in the draft
Order amending Schedule 7 to reflect the exception from the Assembly
legislative powers in relation to the "registration of local
bus services and the application and enforcement of traffic regulation
conditions in relation to those services". This exception
appears under the heading "Highways and Transport" in
Part 2 of Schedule 5 and was introduced by the National Assembly
for Wales (Legislative Competence)(Environment) Order 2010/248.
5. SUBJECT 15:
SOCIAL WELFARE
Matters 15.1—15.10 are inserted by the
following Orders:
(a) The National Assembly for Wales (Legislative
Competence)(Social Welfare) Order 2008/1785
(b) The National Assembly for Wales (Legislative
Competence)(Social Welfare and Other Fields) Order 2008/3132
(c) The National Assembly for Wales (Legislative
Competence)(Social Welfare) Order 2009/3010
(d) The National Assembly for Wales (Legislative
Competence)(Health and Health Services and Social Welfare) Order
2010/236
In Matter 15.1 of Field 15 of Schedule 5 there
is an exception from the legislative powers of the Assembly in
relation to "charges and payments for residential care".
There is no such exception in the draft Order amending Schedule
7.
In Matter 15.10 of Field 15 of Schedule 5 introduced
by SI 2010/236, the Assembly may legislate in relation to "social
care services connected to mental health". In so legislating
they cannot create law relating to "the independent mental
capacity advocacy services established by Part 1 of the Mental
Capacity Act 2005". There is no such exception made to either
Subject 15 "Social Welfare" or Subject 9 "Health
and Health Services" by the draft Order amending Schedule
7.
In Part 2 of Schedule 5 in relation to Social
Welfare there are exceptions preventing the Assembly from legislating
for "independent living funds"; "motability"
and "welfare foods". These exceptions were introduced
by The National Assembly for Wales (Legislative Competence)(Environment)
Order 2010/248. There are no such exceptions in the draft Order
amending Schedule 7.
6. SUBJECT 16:
SPORT AND
RECREATION
In Schedule 5 Field 16 the National Assembly
for Wales (Legislative Competence)(Social Welfare and Other Fields)
Order 20078/3132 established Matter 16.2. This enables the Assembly
to legislate to enable the public to make recreational journeys
to the coast. There are two exceptions to this Matter relating
to mechanically propelled vehicles, except invalid carriages,
and the creation of new highways. It does not seem that these
exceptions are specifically referred to in Subject 7 (Highways
and Transport) of the draft Order amending Schedule nor in any
amendments proposed to Subject 16.
7. SUBJECT 20:
WELSH LANGUAGE
No amendments are proposed to this subject by
the draft Order. In Field 20 of Schedule 5 two Matters are introduced
into this Field by The National Assembly for Wales (Legislative
Competence)(Welsh Language) Order SI 2010/245. In the first of
these two Matters—Matter 20.1—there are a considerable
number of exceptions to the Assembly's power to legislate with
regards to the use of the Welsh language and the treatment of
the Welsh and English language on the basis of equality. Apart
from the exceptions relating to the Assembly not being able to
legislate on the use of the Welsh language in courts and in relation
to broadcasting there does not seem to be any reflection of these
exceptions in the proposed draft Order. Furthermore there are
definitions in the Matters given to words in some of the exceptions,
such as broadcasting and bus services, which are not reflected
in the draft Order.
CONCLUSION
It does not seem to us that the stated purpose
of paragraph 7.1 in the Explanatory Memorandum relating to this
draft Order is completely fulfilled in that certain aspects of
the Assembly's present legislative competence are not fully reflected
in the draft Order. Without an explanation of the reasons for
these omissions it is not clear whether despite the absence of
such references, the Assembly would still not be able to legislate
in relation to such exceptions under Schedule 7. This is because
such exceptions though not specifically recorded in Part 1 of
Schedule 7 may still reflect Central Government functions in relation
to Wales and so be excepted from the Assembly's legislative competence
by paragraph 1(1) of Part 2 to Schedule 7 unless the exercise
of powers relating to these items is specifically agreed to by
the Secretary of State under paragraph 6(1) of Part 3 of Schedule
7. There does not seem to be such express agreement to their exercise
currently in existence.
November 2010
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