Appendix: Government Response
This paper sets out the Government's Response to
the Second Report of Session 2010-11 (HC 603) on The proposed
amendment of Schedule 7 to the Government of Wales Act 2006.
The Welsh Affairs Committee published its Second
Report of Session 2010-11 on the Proposed Amendment of Schedule
7 to the Government of Wales Act 2006 on 22 November 2010.
The report sets out the Committee's conclusions and
recommendations arising from its inquiry into the draft Order:
the National Assembly for Wales (Legislative Competence) (Amendment
of Schedule 7 to the Government of Wales Act 2006) Order 2010,
which amended Schedule 7 to take account of enhancements to the
National Assembly for Wales's legislative competence since the
Schedule was last updated in 2007. The timely publication of the
report helped inform the consideration of the draft Order by a
Delegated Legislation Committee of the House of Commons; the Order
was made by Her Majesty in Council on 15 December.[1]
The report rightly identified Schedule 7 as central
to the legislative powers that the National Assembly would exercise
in the event of an affirmative vote in the referendum on whether
the Assembly should assume primary law-making powers under Part
4 of the Government of Wales Act 2006. The affirmative vote in
the 3 March referendum means that the Welsh Ministers may now
make an order bringing the "Assembly Act provisions"
in Part 4 of the 2006 Act into force, subject to the approval
of the Assembly. Once those provisions are in force, the Assembly
will be able to legislate in relation to the subjects listed under
the twenty headings in Schedule 7, as qualified by the exceptions
and restrictions in that Schedule and in Section 108 of the 2006
Act. The Welsh Ministers laid a draft order[2]
before the Assembly on 8 March. Subject to the Assembly approving
the order, the new arrangements will commence on 5 May, the day
of the Assembly elections.
In responding in light of the referendum the Government
is able to provide a detailed response to the Committee's recommendations
concerning future work in the event of Schedule 7 coming into
effect.
Turning to the specific conclusions and recommendations
in the report:
1. The Government is right to ensure that Schedule
7 of the Government of Wales Act 2006 is amended in advance of
the referendum on the transfer of powers to the National Assembly
for Wales. It should be clear to Parliament, the National Assembly
and the people of Wales what powers the National Assembly for
Wales will be able to exercise if the electorate votes "Yes"
in the referendum. (Paragraph 21)
2. Were it to be put into effect, Schedule 7,
as amended, would confer broader powers on the National Assembly
for Wales than currently exercised under Schedule 5. We have identified
no immediate need for any further protection of the current legislative
competence of the National Assembly. (Paragraph
31)
The Government welcomes the Committee's endorsement
of its approach in respect to updating Schedule 7. We agree fully
with the Committee's conclusion that it should be clear to Parliament,
the National Assembly and the people of Wales what powers the
Assembly would exercise under the Assembly Act provisions. A copy
of Schedule 7, as amended by the Order, was placed on the Wales
Office's website in January 2011, before the start of the referendum
campaign period.[3]
The Government also welcomes the Committee's conclusion
that there is no immediate need for any further protection of
the current legislative competence of the National Assembly. This
reflects the assurance given in the Secretary of State for Wales's
15 November response ("the Government's response") to
the Chair of the Committee that the scope of the subjects in Schedule
7 is not narrower than the equivalent matters in Schedule 5, and
that the Assembly will not be losing any powers in bringing the
Assembly Act provisions into force (nor will the Assembly gain
any powers in areas where the Welsh Ministers have no functions).
3. We note that the Government has not used this
opportunity to define more clearly the powers of Ministers in
relation to the National Assembly for Wales on the grounds of
time and cost. However, we also note that there would be scope
for the National Assembly to legislate on the powers of Ministers
of the Crown in certain circumstances, with and sometimes without
the consent of the Secretary of State. (Paragraph
34)
As explained in the Government's response, we consider
a review of the statute book to identify all Minister of the Crown
functions as they apply to Wales to be too extensive an exercise
in terms of time and resources.
The Committee rightly notes that, once the Assembly
Act provisions are in force, the Assembly could legislate to modify
or remove a function in a devolved area which is conferred on
a Minister of the Crown after those provisions have been brought
into force, without needing the consent of the Secretary of State.
It could also make changes which are purely incidental or consequential
without consent. This is a change from current arrangements, whereby
the Secretary of State must consent to any change to a Minister
of the Crown function.
The Government would expect to be consulted by the
Welsh Assembly Government at an early stage on any future proposal
to modify or remove functions of a Minister of the Crown in an
Assembly Bill, in accordance with the spirit of the Memorandum
of Understanding between the Government and the Devolved Administrations.
The Government also expects the new arrangements to be reflected
in revised guidance to officials.
4. 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. (Paragraph 38)
The Government will review all relevant devolution
guidance notes ("DGNs") in light of the outcome of the
referendum, and particularly DGN 9, on post-devolution primary
legislation affecting Wales, and DGN 16, which will need to be
thoroughly reviewed to set out the process for making Orders under
section 109 of the 2006 Act. Working with the Welsh Assembly Government,
the Government has already started to update the guidance to reflect
the affirmative referendum vote, and hopes to publish the refreshed
guidance later in the spring. The Government will consult the
Welsh Affairs Committee in revising the guidance.
5. 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. (paragraph 45)
The Government believes that, following the affirmative
referendum vote, the subjects set out in Schedule 7 provide a
full and comprehensive range of powers for the Assembly.
Section 109 of the 2006 Act provides a mechanism
to amend Schedule 7 by Order in Council should the Government
and the Welsh Assembly Government agree in future to devolve further
legislative powers. The Government agrees the Committee's recommendation
that any future conferral of legislative power on the Assembly
should be approved by both Parliament and the Assembly. Section
109 Orders made in future — broadly equivalent to Legislative
Competence Orders (LCOs) under the current system—require
the approval of both Houses of Parliament and the Assembly, and
therefore provide an appropriate mechanism for any future amendment
of Schedule 7.
The Government believes it is important for the new
arrangements to bed down in light of the referendum result, and
does not envisage bringing forward many Orders in the coming years.
It would be for Parliament and the Assembly to signal how they
would wish to be involved in scrutinising section 109 orders.
The scrutiny of proposed Legislative Competence Orders provides
a precedent in a somewhat different context.
1 S.I. 2010 No. 2968. Back
2
The draft Government of Wales Act 2006 (Commencement of Assembly
Act Provisions, Transitional and Saving Provisions and Modifications)
Order 2011, available at http://www.assemblywales.org/sub-ld8464-e.pdf.
Back
3
At http://www.walesoffice.gov.uk/files/2011/01/Schedule71.pdf. Back
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