Wales Bill Contents

Chapter 3: The scope of the Assembly’s legislative authority

Overview

21.The switch from a ‘conferred powers’ to a ‘reserved powers’ model is perhaps the most notable aspect of the Wales Bill. As a result, the National Assembly for Wales will gain a general legislative power subject to certain limits. Under the new model, two sets of criteria are central to determining the scope and limits of the Assembly’s competence:

22.The Bill sets out 195 reserved matters.24 In respect of reserved matters, the Assembly does not have legislative authority to enact legislation that:

23.In addition, the Assembly does not have legislative competence to enact legislation that:

24.We set out these restrictions in full to demonstrate that the limits on the Assembly’s legislative competence are both considerable and complex. The reserved powers settlement set out in the Bill raises a number of issues which we address below.

The principles underlying the devolution settlement for Wales

25.These provisions raise a question of constitutional principle regarding the differential treatment of Wales compared to Scotland and Northern Ireland. This point was raised by the Welsh Assembly’s Constitutional and Legislative Affairs Committee, which concluded in its report on the Draft Wales Bill that “it is not entirely clear why Wales still merits a lesser, and much more complex, form of devolution than Scotland and Northern Ireland”.42 Although the Bill differs in some significant respects from the Draft Bill, this point remains pertinent.

26.In our previous report, The Union and devolution, we concluded that:

“There is no evidence of strategic thinking in the past about the development of devolution. There has been no guiding strategy or framework of principles to ensure that devolution develops in a coherent or consistent manner and in ways which do not harm the Union. Instead, successive Governments have responded individually to demands from each nation. Devolution has thus developed in an ad hoc fashion, with different constitutional conversations taking place separately in different parts of the country.”43

27.It has been argued that the process for developing the Wales Bill prized the need for consensus within the negotiations that culminated in the St David’s Day Agreement above the need to arrive at sensible, principled conclusions. Professor Richard Wyn Jones told the Welsh Assembly’s Constitutional and Legislative Affairs Committee that:

“The parties didn’t have to explain why they took those positions. They didn’t have to explain how what they suggested was going to lead to a settlement that would appear to be permanent and provided clarity, and so on. It was a lowest common denominator approach. So, the aim of the process was consensus rather than a sensible approach.”44

28.Similar concerns were expressed by the House of Commons Welsh Affairs Committee, which concluded that “the desire for political consensus was the overwhelming driver of this settlement”.45

29.The then Secretary of State for Wales told the Assembly’s Constitutional and Legislative Affairs Committee that the process of determining the list of reserved matters was begun by the Wales Office asking UK departments what they believed to be reserved:

“In terms of the specifics of the reservations, it was an iterative process right across Whitehall; the first time, actually, that every single Government department across Whitehall has been engaged in an exercise thinking about devolution in a structured and coherent way. The request that we put out to our colleagues in Whitehall was, ‘What is your interpretation of the current devolution boundary in your departmental areas given the existing legislation?’ Now, some of information we had back—I took a decision to push back on them, saying, ‘Do you really think that’s reserved?’ So, there was a bit of, you know, to-ing and fro-ing. So, the list that has been arrived at is not a fresh draft list, it has been worked through a bit, but I accept that there’s probably quite a lot of scope for looking at that again and simplifying it …”46

30.The House of Commons Welsh Affairs Committee has expressed concern about this process. It noted that “a common theme in the evidence we received has been the concern at a perceived lack of principle”47 and concluded on this point that:

“The UK Government did not set out to change the principles underpinning the delineation of the devolution boundary but accepted the current settlement as its starting point. Departments were then asked to consider a number of additional factors when considering reservations. However, we are not clear about what guidance Departments were given. Furthermore, it is not clear to us what the process was that then resulted in the final list.”48

31.Elsewhere, the National Assembly for Wales Legal Service has concluded that:

“The application of a principle of subsidiarity would lead to the reservation of those matters that are essential to the constitutional and economic functioning of the UK as a whole. The short list of excepted matters under the Northern Ireland Act (the equivalent of our proposed reserved matters) shows clearly what really needs to be reserved to the centre. The UK Government’s commitment to the England and Wales jurisdiction could justify some further reservations. However, there are numerous reservations for which no rationale is apparent.”49

32.In our report, The Union and devolution, we concluded that any further devolution should take place on the basis of appropriate principles, to ensure that the devolution settlements evolve “in a coherent manner”, rather than “in the reactive, ad hoc manner in which devolution has been managed to date”.50

33.There is no evidence of a clear rationale underlying the scope of the powers devolved by the Wales Bill. We would welcome an explanation from the Government as to the principles that underpin the devolution settlement set out in the Wales Bill.

The complexity of the devolution settlement for Wales

34.One of the concerns that has often been raised in respect of the existing ‘conferred powers’ model is that it invites so many questions about the precise boundaries of the Welsh Assembly’s legislative competence. An attraction of the ‘reserved powers’ model is that it is potentially more straightforward. The reserved powers regime in the Wales Bill is, however, far from straightforward. Part of its complexity derives from the number of matters that are reserved (and from the exceptions to such matters).

35.However, the system’s complexity is also attributable two further factors:

36.A related difficulty is that some of the legal tests that limit the Welsh Assembly’s authority by reference to reserved matters overlap with one another. For instance:

37.As the Welsh Assembly Legal Service has pointed out, there is a “very fine distinction” between the two tests.53 For instance, legislation might pass the “relates to” test because its purpose and effect are principally concerned with non-reserved matters. It might, however, fail the “modifies” test because it makes some alteration to a law on a reserved matter. In those circumstances, the legislation would be within devolved competence only if it modified the law on a reserved matter in an ancillary way and had no greater effect on the reserved matter than was necessary in order to achieve the non-reserved purpose in question.

38.The Welsh Assembly’s Constitutional and Legislative Affairs Committee has raised further serious concerns about the complexity of the Wales Bill. It states bluntly that: “Our overall assessment of the Bill is that it is a complex and inaccessible piece of constitutional law that will not deliver the lasting, durable settlement that people in Wales had expected”.

39.It is worth noting in this regard that the devolution settlement set out in the Government of Wales Act 2006 has generated litigation on several occasions.54 Despite the move from a conferred powers model to a reserved powers model, the Wales Bill does not simplify the Welsh devolution settlement—indeed, if anything complicates it.

40.We believe that there is a strong constitutional interest in legislation—particularly constitutional legislation such as the Wales Bill—being as clear as possible. The lack of clarity in the Wales Bill increases the likelihood of demarcation disputes regarding the extent of the Welsh Assembly’s powers, and thus risks not only future litigation but the need for further legislation to clarify the Welsh devolution settlement.

The scope of Assembly’s legislative competence

41.While the Wales Bill extends the Assembly’s legislative competence in some areas, it potentially circumscribes its scope in others. This led one member of the Welsh Assembly’s Constitutional and Legislative Affairs Committee to tell us that they had expected the Wales Bill to introduce “a reserved powers, not a reversed powers, model”.

42.Our attention was drawn in this regard to the prohibition from enacting legislation that relates to reserved matters, the necessity test for the modification of the law on reserved matters, and the inclusion on the list of reserved matters of previously ‘silent subjects’ on which, following a Supreme Court case in 2014, the Welsh Assembly had been able to legislate so long the legislation also related to matters of devolved competence.

‘Silent subjects’ and legislating in relation to reserved matters

43.The schedule setting out reserved matters runs to approximately 35 pages and sets out some 195 reserved matters. This represents a reduction on the number of such matters in the Draft Wales Bill. However, part of the reduction in the number of reserved matters is explicable by the fact that some separate reserved matters in the Draft Bill have been turned into single, compendious reserved matters in the Bill itself.

44.The list of reserved matters in the Bill has generated criticism because it incorporates a number of so-called ‘silent subjects’. As things presently stand under the GWA 2006, the Assembly acts within devolved competence only if (among other things) the relevant legislative provision “relates to” one or more of the subjects set out in Schedule 7 to the GWA 2006.55 In setting out the subjects on which the Assembly can legislate, Schedule 7 creates explicit exceptions. In this way, two categories of matters are explicitly found in Schedule 7:

45.However, on some matters, Schedule 7 is simply silent: for instance, immigration and employment are not mentioned either way. It is clear that under the present regime the Assembly cannot legislate exclusively on silent subjects, since its legislation must “relate to” one or more of the explicitly devolved subjects. (The “relates to” test is applied by reference to the purpose and effect of the provision.)56 However, that left open the question as to whether Assembly legislation that does relate to a devolved subject but which also relates to a silent subject is within devolved competence.

46.That question was answered affirmatively by the Supreme Court in the context of litigation concerning the Agriculture Sector (Wales) Act 2014.57 The Act relates to both agriculture (a devolved subject) and employment (a silent subject). The Court held that provided that the legislation related to a devolved subject (which it did), it did not matter that it could also be said to relate to a silent subject. In reaching this conclusion, the Court rejected the argument of the Attorney-General for England and Wales to the effect that legislation relating to silent (as well as devolved) subjects should be treated as being outside the Assembly’s competence. Accepting that argument, said the Court, “would in practice restrict the powers of the Assembly to legislate on subjects which were intended to be devolved to it” and “give rise to an uncertain scheme that was neither stable nor workable”.58

47.The Wales Bill in effect reverses this judgment because many presently silent subjects become reserved matters under the Bill, and the Assembly, under the new dispensation, will exceed devolved competence if its legislation “relates to” reserved matters (see paragraph 21).59 This means that Assembly legislation that relates to reserved matters will be outside legislative competence even if it also relates to non-reserved matters. The upshot is that, in certain respects, the Assembly’s legislative competence will be rolled back.

48.The Welsh Assembly Constitutional and Legislative Affairs Committee noted in their report that “the approach in converting silent matters into reservations will lead to roll-back of competence.”60 Their proposed solution is the removal of the “relates to” test in relation to provisions that are ancillary to legislation which is within the competence of the Welsh Assembly. They propose the following amendments:

Page 2, line 33 leave out “subsection (2)(b) does” and insert “subsections (2)(b) and (2)(c) do”

Page 2, line 34 leave out from “provision” to end of line 6 on page 3 and insert “which is within the Assembly’s legislative competence (or would be if it were included in an Act of the Assembly).”61

49.The “relates to” test in Clause 3 of the Wales Bill mirrors an identical provision in section 29 of the Scotland Act 1998. However, the list of reserved matters set out in Schedule 1 of the Wales Bill is so broad, compared to the reservations contained in the Scotland Act, that the restrictions following from this test are far greater in the context of the Wales Bill.

50.As a result, we are concerned that this test may have the effect of reducing the scope of the Welsh Assembly’s legislative competence, and perhaps lead to further referrals to the Supreme Court. We would welcome an explanation from the Government as to whether this was the intent of the legislation and, if not, what steps they intend to take to ensure that the competence of the Welsh Assembly is not inadvertently reduced.

51.The House may also wish to note that the Welsh Assembly’s Constitutional and Legislative Affairs Committee has proposed two amendments that would restore the existing limits on the Welsh Assembly’s jurisdiction by allowing it to legislate in an ancillary way in relation to reserved matters. We have reproduced these amendments above in paragraph 48.

The necessity test

52.Similar issues arise with respect to the ‘necessity test’ in the Wales Bill. The ‘necessity test’ is a requirement that the relevant provision has no greater effect on the matter in question than is necessary to give effect to the (non-reserved) purpose of the provision. This affects the Assembly’s competence in relation to provisions affecting England and to the modification of the law on reserved matters.

53.The Scotland Act makes similar provision in respect of the modification of the law on reserved matters.62 But, as with the “relates to” test, the large number of reserved matters in the Wales Bill means that the necessity test will bite on a far broader array of legislation than is the case in Scotland.

54.The Welsh Assembly Constitutional and Legislative Affairs Committee have argued that the necessity test for modification of the law on reserved matters “captures a vast amount of law, as it encompasses all of the law on all of the reservations provided for in the Bill.”63 They go on to add that:

“This means that National Assembly legislation will only be able to modify that vast amount of law if it is doing so in an ancillary way and there is no greater effect than necessary to give effect to the purpose of the National Assembly legislation. Further, the question of whether something is ‘necessary’ is likely to be something that will have to be decided by the Supreme Court. The scope of this restriction could amount to considerable obstacles to the National Assembly legislating in a holistic and effective manner.” 64

55.In their report on the Wales Bill they propose amendments to remove the necessity test in relation to the law on reserved matters:

Page 81, line 21, leave out from “matters” to end of line 26.65

56.The ‘necessity test’ in relation to the modification of the law on reserved matters corresponds to a similar provision in the Scotland Act. As with the “relates to” test, it is likely to have a disproportionate effect on the legislative competence of the Welsh Assembly, given the lengthy list of reserved subjects set out in Schedule 7 of the Wales Bill. The House may wish to consider whether it is appropriate to include this provision, as it stands, in the Wales Bill, when its effect is likely to differ so widely from the equivalent provision in the Scotland Act.

57.We note that the Welsh Assembly Constitutional and Legislative Affairs Committee has proposed an amendment removing the necessity test in relation to the law on reserved matters, which we reproduce above for the convenience of the House.

Private and criminal law

58.The Draft Bill included the application of the necessity test to the modification of private law and of criminal law. Following concerns that the Welsh Assembly’s legislative competence would be unduly hobbled, the necessity test was dropped in respect of private and criminal law. The Bill now provides for:

59.The Welsh Assembly Constitutional and Legislative Affairs Committee state in their report that the restrictions still set out in relation to criminal law “would lead to a roll-back of the National Assembly’s legislative competence,”66 and propose harmonising the restrictions on modifying criminal law with the private law restriction.

60.We would welcome a statement from Government as to whether the Wales Bill is intended to roll back the competence of the Welsh Assembly as regards certain matters relating to criminal law, and in particular the Welsh Assembly’s current competence in relation to the protection and well-being of children and of young adults.

Executive functions

61.The Scotland Act 1998 contains a general authorisation whereby the Scottish Ministers, instead of Ministers of the Crown, are permitted to exercise executive powers that fall within devolved competence.67 Corresponding definitions of devolved competence apply to the Scottish Parliament and the Scottish Ministers.68 In this way, the executive competence of the Scottish Ministers and the legislative competence of the Scottish Parliament are aligned. Among other things, this means that it is not necessary for the Scottish Parliament, in exercise of its devolved competence, to remove or modify UK Ministers’ executive powers, because UK Ministers’ executive powers relating to matters within Scottish devolved competence were transferred to the Scottish Ministers upon the entry into force of the Scotland Act 1998.

62.The position in Wales is different. Ever since the Assembly and the Welsh Ministers were rendered formally distinct by the GWA 2006,69 the legislative authority of the Assembly and the executive authority of the Welsh Ministers have been misaligned. As a result, there are some matters upon which the Assembly has competence at the legislative level, but in relation to which functions may remain with UK Ministers at the executive level.

63.The Wales Bill does not attempt to remedy this situation. Instead, the UK Government has stated that it intends to align the legislative and executive powers of the Welsh institutions by transferring the necessary executive functions to the Welsh Government by Order. In its response to the Commons Welsh Affairs Committee’s report on the Draft Wales Bill, the Government said:

“The Bill lists those functions which will continue to be exercised concurrently or jointly between Welsh Ministers and Ministers of the Crown, and the few remaining functions which a Minister of the Crown will continue to exercise, and which cannot be modified by Assembly legislation without consent. All other functions in devolved areas will be transferred by Order to Welsh Ministers.70

64.If the Government’s intention is to align, as far as possible, the executive and legislative competence of the Welsh Assembly and Government, we question why it is doing so via secondary legislation rather than in primary legislation—as was the case in Scotland. We would welcome an explanation from Government as to why it intends to use a Transfer of Functions Order to pass executive competence to the Welsh Government, rather than simply amending the Wales Bill so as to transfer all functions currently exercisable by Ministers of the Crown within devolved competence to the Welsh Government (taking into account the exceptions it listed in its response to the Commons Welsh Affairs Committee).

65.At present, the GWA 2006 precludes the Assembly from:

66.The Draft Wales Bill would have enlarged the range of matters attracting the need for UK ministerial consent, extending it to functions other than precommencement functions, and beyond Minister of the Crown functions to functions of public authorities (other than Welsh public authorities). The Draft Bill would also have required UK ministerial consent in respect of the removal or modification of functions even if the provision was merely incidental or consequential on another provision.

67.The difficulties raised by the Draft Bill were explained in the following terms by Professor Robert Thomas:

“First, the need to obtain Minister of the Crown consents applies when the Assembly is legislating on devolved (non-reserved) matters—areas in which the UK Government has no interest or responsibility. Second, the notion that the draft Bill introduces a rules-based approach is immediately contradicted by the exercise of ministerial discretion whether or not to give consent. Third, there is the issue of accountability. When making such decisions UK ministers are accountable to the UK Parliament—yet the whole purpose of establishing the Welsh Assembly was to remedy the democratic deficit that existed in Wales.”74

68.Against this background, the Bill improves upon the Draft Bill to some extent. For instance, the Bill contains a list of ‘Wales public authorities’,75 making much clearer the range of public bodies in respect of which the Assembly can legislate within devolved competence without the need for UK ministerial consent. The Bill is clearer too in that it explicitly identifies the powers that remain exercisable at a UK level (to which the consent requirement applies) and those that are exercisable on a joint or concurrent basis (to which the consent requirement also applies). The Bill must also be read in the light of the UK Government’s plan to transfer certain UK ministerial functions to the Welsh Ministers through a Transfer of Functions Order—although, as pointed out earlier, we would welcome an explanation from the Government as to why such transfers are not being made on the face of the Bill via a general transfer of competence in devolved areas subject to any pertinent exceptions.

69.However, in spite of the differences in this area between the Draft Bill and the Bill, some concerns remain in relation to the latter:

70.The latter point is illustrated by the Welsh Assembly’s Legal Service by reference to the Public Health (Wales) Bill.77 The Bill was intended to prohibit the use of e-cigarettes in workplaces in Wales. To that end, it imposed certain duties upon workplace managers. The Legal Service state that this is currently within devolved competence and that no question of obtaining UK Ministers’ consent would arise (because the consent requirement presently extends only to UK ministerial functions, not to functions of public authorities). However, they goes on to say:

“But under the Wales Bill, UKG consent would be needed to impose such duties on reserved authorities with workplaces in Wales (such as the DVLA, Crown Prosecution Service and Land Registry). This is because those duties would amount to imposing functions on reserved authorities, and paragraph 8 of new Schedule 7B makes it very clear that UKG consent is needed before the Assembly can impose functions on reserved authorities. If UKG consent was not given, the duty to take steps to stop persons using e-cigarettes and the duty to put up signs would not apply to reserved authorities. This would result in an inconsistent application of those duties across Wales.”78

71.The House may wish to consider whether the extension of the consent requirement beyond Ministers of the Crown to all ‘reserved authorities’ is appropriate, and whether it is appropriate to extend the consent requirement to merely incidental or consequential modifications or removals of relevant functions. In deciding this matter, the House may wish to consider the extent to which it is appropriate for the scope of a devolved assembly’s legislative authority to be determined through the exercise of discretion by UK Ministers, albeit in respect of what is likely to be a relatively limited range of matters.


24 Government of Wales Act 2006, new schedule 7A (to be inserted by Wales Bill, schedule 1)

25 Government of Wales Act 2006, new section 108A(2)(c) (to be inserted by Wales Bill, clause 3)

26 Government of Wales Act 2006, new schedule 7B, paras 1–2 (to be inserted by Wales Bill, schedule 2)

27 Government of Wales Act 2006, new section 108A(2)(a) (to be inserted by Wales Bill, clause 3)

28 Government of Wales Act 2006, new section 108A(2)(d) and (3) (to be inserted by Wales Bill, clause 3)

29 Government of Wales Act 2006, new section 108A(2)(e) (to be inserted by Wales Bill, clause 3)

30 Government of Wales Act 2006, new section 108A(2)(e) (to be inserted by Wales Bill, clause 3)

31 Government of Wales Act 2006, new schedule 7B, para 3 (to be inserted by Wales Bill, schedule 2)

32 Government of Wales Act 2006, new schedule 7B, para 4(1)–(2) (to be inserted by Wales Bill, schedule 2)

33 Government of Wales Act 2006, new schedule 7B, para 4(3) (to be inserted by Wales Bill, schedule 2)

34 Government of Wales Act 2006, new schedule 7B, paras 5–7 (to be inserted by Wales Bill, schedule 2)

35 Government of Wales Act 2006, new schedule 7B, para 8(1)(a) (to be inserted by Wales Bill, schedule  2)

36 Government of Wales Act 2006, new schedule 7B, para 8(1)(b) (to be inserted by Wales Bill, schedule 2)

37 Government of Wales Act 2006, new schedule 7B, para 8(1)(c) (to be inserted by Wales Bill, schedule 2)

38 Government of Wales Act 2006, new schedule 7B, para 10 (to be inserted by Wales Bill, schedule 2)

39 Government of Wales Act 2006, new schedule 7B, para 11(1)(a) (to be inserted by Wales Bill, schedule 2)

40 Government of Wales Act 2006, new schedule 7B, para 11(1)(b)–(e) (to be inserted by Wales Bill, schedule 2)

41 Government of Wales Act 2006, new schedule 7B, para 11(2) (to be inserted by Wales Bill, schedule 2)

42 National Assembly for Wales Constitutional and Legislative Affairs Committee, Report on the UK Government’s Draft Wales Bill, December 2015, para 172: http://www.assembly.wales/laid%20documents/cr-ld10468/cr-ld10468-e.pdf [accessed 25 October 2016]

43 Constitution Committee, The Union and devolution (10th Report , 2015–16, HL Paper 149), para 99

44 National Assembly for Wales Constitutional and Legislative Affairs Committee, Report on the UK Government’s Draft Wales Bill, December 2015, para 22

45 Welsh Affairs Committee, Pre-legislative scrutiny of the draft Wales Bill (First Report, Session 2015–16, HC 449), para 22

46 National Assembly for Wales Constitutional and Legislative Affairs Committee, Report on the UK Government’s Draft Wales Bill, December 2015, para 15

47 Welsh Affairs Committee, Pre-legislative scrutiny of the draft Wales Bill (First Report, Session 2015–16, HC 449), para 34

48 Ibid., para 37

49 Unpublished briefing for the National Assembly for Wales Constitutional and Legislative Affairs Committee, Legal Advice Note: The Wales Bill—Reserved Powers, prepared by the Assembly’s Legal Service and quoted by permission.

50 Constitution Committee, The Union and devolution (10th Report , 2015–16, HL Paper 149), para 160

51 Unpublished briefing for the National Assembly for Wales Constitutional and Legislative Affairs Committee, Legal Advice Note: The Wales Bill—Competence Tests, prepared by the Assembly’s Legal Service and quoted by permission.

52 Similar provision is made in the Scotland Act 1998. However, the scope of reserved matters in the Wales Bill arguably makes the issues raised by these two interlocking restrictions upon the Assembly’s competence more acute than the corresponding restrictions upon the Scottish Parliament’s law-making authority.

53 Unpublished briefing for the National Assembly for Wales Constitutional and Legislative Affairs Committee, Legal Advice Note: The Wales Bill—Competence Tests, prepared by the Assembly’s Legal Service and quoted by permission.

54 Three bills have been referred to the Supreme Court since the Welsh Assembly was granted primary legislative powers in 2011. Two bills, the Local Government Byelaws (Wales) Bill 2012 and the Agricultural Sector (Wales) Bill, were referred by the Attorney-General. One, the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill, was referred by the Counsel General for Wales.

55 Government of Wales Act 2006, section 108(4)(a)

56 Government of Wales Act 2006, section 108(7)

57 Attorney General for England and Wales v Counsel General for Wales [2014] UKSC 43, [2014] 1 WLR 2622

58 Attorney General for England and Wales v Counsel General for Wales [2014] UKSC 43, [2014] 1 WLR 2622, para 68

59 Government of Wales Act 2006, new section 108A(2)(c) (to be inserted by Wales Bill, clause 3)

60 National Assembly for Wales, Constitutional and Legislative Affairs Committee, Report on the UK Government’s Wales Bill, October 2016, para 126: http://www.assembly.wales/laid%20documents/cr-ld10771/cr-ld10771-e.pdf [accessed 25 October 2016]

61 Report on the UK Government’s Wales Bill, October 2016, p.38

62 Scotland Act 1996, schedule 4, paras 2 and 3

63 National Assembly for Wales Constitutional and Legislative Affairs Committee, Report on the UK Government’s Wales Bill, para 143: http://www.assembly.wales/laid%20documents/cr-ld10771/cr-ld10771-e.pdf [accessed 25 October 2016]

64 Report on the UK Government’s Wales Bill, para 144

65 Report on the UK Government’s Wales Bill, para 148

66 Report on the UK Government’s Wales Bill, para 148

67 Scotland Act 1998, section 53

68 Scotland Act 1998, section 54

69 Prior to the Government of Wales Act 2006, no formal legal distinction existed between the Assembly and the de facto administration, the Assembly itself being in possession only of administrative authority.

70 Government response to House of Commons Welsh Affairs Committee’s report on the Draft Wales Bill, 7 June 2016: http://www.parliament.uk/documents/commons-committees/welsh-affairs/SOS-draft-Wales-Bill-Govt-response.pdf

71 A precommencement function is a function that was exercisable by a Minister of the Crown immediately prior to the entry into force of the provisions in the 2006 Act permitting the enactment of Assembly Acts.

72 Government of Wales Act 2006, schedule 7, paras 1 and 6

73 Government of Wales Act 2006, schedule 7, para 2

74 Robert Thomas, “The Draft Wales Bill—Part 2”, UK Constitutional Law Blog, 3 Dec 2015: https://ukconstitutionallaw.org/2015/12/03/robert-thomas-the-draft-wales-bill-2015-part-2/ [accessed 25 October 2016]

75 Government of Wales Act 2006, new schedule 9A (to be inserted by Wales Act, schedule 3)

76 Robert Thomas, “The Draft Wales Bill—Part 2”, UK Constitutional Law Blog, 3 Dec 2015

77 Which, in the end, was not enacted.

78 Unpublished briefing for the National Assembly for Wales Constitutional and Legislative Affairs Committee, Legal Advice Note: The Wales Bill—Competence Tests, prepared by the Assembly’s Legal Service and quoted by permission.




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