Annex A
Background to the Legislative Competence Order
Procedure
The Government of Wales Act 2006 introduced a procedure
whereby the National Assembly for Wales can bring forward proposals
which would extend the Assembly's lawmaking powers by way of Legislative
Competence Orders in Council. The Orders do not themselves change
the general law for Wales—they pave the way to subsequent
'Measures' to change the law applying to Wales within the devolved
areas of legislative competence. They do this by adding new "Matters"
to the "Fields" of legislative competence set out in
Schedule 5 to the Government of Wales Act 2006.
These proposals for draft Orders may be introduced
by the Welsh Assembly Government, by committees of the National
Assembly, or by individual Assembly Members (chosen by ballot).
They are subject to pre-legislative scrutiny by committees of
the Assembly appointed for this purpose and by committees of the
House of Commons and the House of Lords. Whitehall agreement ("clearance")
is a necessary prerequisite before a proposed Order is referred
by the Secretary of State for Wales to each House at the pre-legislative
scrutiny stage.
Following the pre-legislative scrutiny stage, the
National Assembly may agree an actual draft Order. This may take
account of committee recommendations (from either its own committees
or Westminster) arising from pre-legislative scrutiny. The draft
Order may then be laid before Parliament by the Secretary of State
for Wales—and he or she may still decline to do so at this
stage. If the draft Order is laid, it is considered by both House
of Parliament, and may be debated by them. Draft Orders at this
stage are not amenable and can only be approved or rejected. If
approved by both House, and once it is given the royal assent
in the Privy Council, direct law-making powers are devolved to
the Assembly within the scope of the Order in Council. The Assembly
can then make laws in the form of Assembly Measures, which need
to be passed by the National Assembly but which require no further
approval by either Whitehall or Parliament.
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