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

Written evidence from Emyr Lewis, Partner in Morgan Cole Solicitors, Cardiff

  1. Devolution of law-making powers to the Assembly under schedule 5 has been, as many commentators have noted, inconsistent and haphazard.

  2. For instance, there is a notable contrast between fields such as education or social welfare on the one hand, and health on the other.

  3. In the fields of education and social welfare, there has been substantial and orderly devolution of powers in some areas which would enable the Assembly to legislate in a mature and targeted manner, using the powers purposefully when the need arises.

  4. In the field of health, only two focused areas (redress and aspects of mental health) have been devolved, despite substantial executive devolution to the Welsh Ministers to reform the health service in Wales. In this case, the danger of creating a democratic deficit is clear.

  5. In other cases, the need to reach political compromises both within and between London and Cardiff has given rise to very complex constraints on and exceptions to the powers of the Assembly to make laws in certain fields, notably the Welsh language and housing.

  6. If the Assembly Act provisions come into force, so that the Assembly gets the broader powers contained in schedule 7, then one beneficial effect will be to start to iron out these inconsistencies and to remove these constraints.

  7. The draft Order amending Schedule 7 of the Government of Wales Act 2006 is to be welcomed, because it responds in a constructive way to the growth of certain fields over time. Paragraph 7.1 of the Explanatory Memorandum states:

    This instrument amends Schedule 7 in order to reflect legislative competence which has been conferred on the Assembly under the current arrangements and certain exceptions and restrictions which have been applied to that competence, since Schedule 7 was last updated in 2007.

  8. From this, the informing principle seems to be that, where the Assembly has already acquired powers to make laws which are broader than Schedule 7, these are kept. This is a very important principle, since it would be totally anomalous if the effect of implementing Schedule 7 were to be to remove law-making powers from the Assembly which Parliament had already decided should be devolved.

  9. This paragraph also makes it clear that the draft Order reflects only certain exceptions and restrictions. Again this is sensible, since the exceptions to and restrictions on current law-making powers reflect not only areas which might properly be regarded as reserved matters (and therefore should be reflected in Schedule 7), but also reflect the piecemeal way and diverse processes by which the current powers have reached the statute book.

  10. One aspect which needs attention is the exceptions in Schedule 7. Unlike Schedule 5 exceptions, these apply across subjects, so that an exception to Health will apply also to Education. This could lead to unintended loss of legislative competence.

  11. For instance, under Schedule 5, matter 20.1, the Assembly has the power to legislate in relation to facilitating and promoting the use of the Welsh language. On the face of it, that must include use of the language in broadcasting. There is a specific exception in matter 20.1, which states: "This matter does not include imposing duties about broadcasting", but other types of provision about broadcasting could be made, for instance by giving the Welsh Ministers powers (but not a duty) to fund or assist Welsh-language broadcasting.

  12. One can also foresee circumstances relating to other currently-devolved matters, where the power to legislate in relation to broadcasting might be relevant (for instance education), and where it is not currently excluded.

  13. Schedule 7, however, excludes broadcasting from subject 3, which contains the power to make laws about culture. This exception extends, therefore, to the whole of Schedule 7, so would remove the existing powers.

  14. I have not analysed each current power under Schedule 5 against each current (or envisaged) exception under Schedule 7, so I cannot say to what extent the issue identified here is extensive. Nevertheless, assuming that it is agreed that Schedule 7 should not remove from the Assembly law-making powers which Parliament has already devolved, I would recommend that a saving provision be included so as to preserve the extent of the current law-making powers. This should be done by including a further amendment to Schedule 7. One option would be to state: No exception from any Subject shall have effect to the extent that it would prevent the Assembly from making a provision in an Assembly Act which it could have made in an Assembly Measure under its legislative competence as it was before the Assembly Act Provisions came into force.

14 November 2010

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