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Devolved areas

The National Assembly’s legislative competence

The UK Parliament has delegated some of its law making powers to the National Assembly for Wales.  The National Assembly has the power to pass primary legislation in Assembly Acts which are equivalent in status to Acts of Parliament.

However, there is one important respect in which the National Assembly’s law making powers differ from the law making powers of the UK Parliament.  The UK Parliament is sovereign, meaning that it has power to pass laws on any matter it chooses.  The National Assembly is not sovereign.  It is a body governed by statute, formerly the Government of Wales Act 1998 (GOWA 1998) and now the Government of Wales Act 2006 (GOWA 2006).  This means that it only has the law making powers given to it by GOWA 2006.

We describe all those areas in which the National Assembly has the power to pass laws as being within its ‘legislative competence’.  Sections 107 and 108 of, and Schedule 7 to, GOWA 2006 define the extent of the National Assembly’s legislative competence.  Any provision in an Assembly Act which is outside the legislative competence of the National Assembly is not a valid law.  (In relation to the 22 Assembly Measures passed between 2008 and 2011, legislative competence is governed by sections 93 and 94 of, and Schedule 5 to, GOWA 2006.)

The steps for determining whether a provision in an Assembly Act is within the National Assembly’s legislative competence are as follows:

Step 1: The provision must fall within either section 108(4) or section 108(5) of GOWA 2006.

Step 2: The provision must not breach any of the restrictions in Part 2 of Schedule 7 to GOWA 2006 (having regard to the exceptions in Part 3).

Step 3: The provision must not extend to any territory other than England and Wales.

Step 4: The provision must not be incompatible with those parts of the European Convention on Human Rights to which the UK is signed up. 

Step 5: The provision must not be incompatible with EU law.

A broad outline of the considerations for each of these steps is set out below.  For full details, please refer to the relevant provisions of GOWA 2006.

Section 1

Steps 1 to 5

Step 1: Section 108(4) or section 108(5)

In order to be within legislative competence, a provision must fall within either section 108(4) or 108(5).

Legislative competence within section 108(4)

In order to fall within section 108(4), the following three things must all be satisfied:

  • The provision must ‘relate to’ one or more of the subject headings in Part 1 of Schedule 7.  When deciding whether a provision ‘relates to’ a subject it is necessary to consider the purpose of the provision, having regard to the effect it will have.

The subjects which have been devolved appear under the headings: agriculture, forestry, animals, plants and rural development; ancient monuments and historic buildings; culture; economic development; education and training; environment; fire and rescue services and fire safety; food; health and health services; highways and transport; housing; local government; National Assembly for Wales; public administration; social welfare; sport and recreation; devolved taxes; tourism; town and country planning; water and flood defence; Welsh language.

  • The provision must not fall within any of the exceptions listed in Part 1 of Schedule 7.  The exceptions specify areas within the broad devolved subject areas where the UK Parliament has reserved for itself the exclusive right to pass laws.  Some subjects have no exceptions listed for them, but others have wide ranging exceptions.  

Each exception is listed under the subject heading to which it most closely relates.  However, save in relation to devolved taxes, all the exceptions apply to all the subject areas.  In relation to the subject ‘devolved taxes’ (paragraph 16A of Part 1), only exceptions specifically listed under that subject heading apply to limit the National Assembly’s legislative competence in relation to devolved taxes (and there are currently no such exceptions).

  • The provision must not apply otherwise than in relation to Wales.  In other words, the provision must not purport to change the law in relation to any place other than Wales.  Nor may the provision confer, impose, modify or remove functions exercisable otherwise than in relation to Wales.

Legislative competence within section 108(5)

Even if a provision is not within the legislative competence of the National Assembly under section 108(4), it will still be within legislative competence if it satisfies either of the following:

  • It provides for the enforcement of another provision within an Assembly Act or Assembly Measure which is within legislative competence under section 108(4), or is otherwise appropriate for making such a provision effective.
  • It is incidental to, or consequential on, another provision within an Assembly Act or Assembly Measure which is within legislative competence under section 108(4).

Step 2: Restrictions in Part 2 of Schedule 7

Even if a provision relates to one of the devolved subject areas in Part 1 of Schedule 7, it will not be within the legislative competence of the National Assembly if it falls within one of the general restrictions in Part 2 (see section 108(6)(a)). The general restrictions in Part 2 are themselves subject to the exceptions in Part 3. Accordingly, a general restriction in Part 2 takes a provision outside of legislative competence, but an exception in Part 3 brings a provision within legislative competence.

The general restrictions are too detailed to set out in full here, but they include (and this is a non-exhaustive list):

  • A restriction on removing or modifying any function of a Minister of the Crown (i.e. a UK Government Minister), and on conferring any new functions on a Minister of the Crown.
  • A restriction on modifying specific Acts of Parliament, including the European Communities Act 1972, the Human Rights Act 1998 and most parts of the Government of Wales Act 2006 (again, this list is not exhaustive).

The exceptions from Part 2 (set out in Part 3) are also too detailed to set out in full here, but they bring within legislative competence (and this is also a non-exhaustive list):

  • Any provision removing or conferring a function on a Minister of the Crown if the Secretary of State consents to the provision.
  • Any provision removing or conferring a function on a Minister of the Crown if the provision is incidental to, or consequential on, another provision in the same Assembly Act.
  • Any provision which merely restates the law, or repeals or revokes a redundant law.

Step 3: Extends only to England and Wales

In order to be within legislative competence, a provision must not extend to any territory other than England and Wales (section 108(6)(b)).  In other words, it must only change the law in the legal jurisdiction of England and Wales.  (Do not confuse ‘extend to’ with ‘apply to’, the latter being relevant to ensuring a provision is within legislative competence under section 108(4).)

Step 4: Compatible with European Convention on Human Rights

In order to be within legislative competence, a provision must not be incompatible with those parts of the European Convention on Human Rights to which the UK is signed up (section 108(6)(c)).  See the definition of ‘Convention rights’ in section 1 of the Human Rights Act 1998 for an explanation of which parts of the Convention the UK is signed up to.  More information on the impact of the European Convention on Human Rights on the UK’s legal system can be found here.

Step 5: Compatible with EU law

In order to be within legislative competence, a provision must not be incompatible with EU law (section 108(6)(c)).  General information on the laws of the European Union, and the way in which they have precedence over UK laws, can be found here.

Section 2

Dealing with legislative competence issues

Resolution of uncertainties over legislative competence

If there is uncertainty over whether a provision in an Assembly Act or Assembly Measure (or in subordinate legislation made under an Assembly Act or Assembly Measure) is within legislative competence, it may be possible to resolve the matter by interpreting that provision narrowly.  Section 154 of GOWA 2006 has the effect that, even if a provision could be interpreted in such a way as to be outside the National Assembly’s legislative competence, it must, if possible, be interpreted as narrowly as is required for it to be within legislative competence.

Referring a Bill to the Supreme Court for a ruling on legislative competence

It is sometimes either necessary or advisable to take steps to establish whether a Bill is within the National Assembly’s legislative competence before it becomes law.

Both the Counsel General (for Wales) and the (UK) Attorney General have power to refer a Bill of the National Assembly, or a provision within a Bill of the National Assembly, to the Supreme Court for a decision as to whether it is within the National Assembly’s legislative competence (see section 112 of GOWA 2006).  A reference can be made only during the four weeks immediately after the Bill is passed by the National Assembly, and therefore before it receives Royal Assent and becomes an Assembly Act.

Even if there is a strong degree of confidence that a Bill is within legislative competence, a reference to the Supreme Court may be made either for the purpose of achieving certainty or because it is anticipated that the resulting Assembly Act is nevertheless likely to be challenged on grounds of legislative competence following its coming into force.

This power to make a reference to the Supreme Court has already been exercised on a number of occasions.

Further information on the Bills referred and on the decisions made by the Supreme Court can be found here.

Use of an Order in Council to remedy ultra vires acts

There is a mechanism in section 151 of GOWA 2006 which may be used to remedy the situation where an Assembly Act (or Measure), or any provision in an Assembly Act (or Measure), is found to be outside, or may be outside, the National Assembly’s legislative competence.  It can also be used to remedy the improper use of a function conferred under an Assembly Act (or Measure).

Under section 151, Her Majesty may make an Order in Council to make any provision she considers appropriate in consequence of the lack of legislative competence (or the improper exercise of the function).  In particular, the Order in Council may amend any enactment, including the Assembly Act (or Measure) in question.  In other words, an Order in Council may be used as a means to amend an Assembly Act which is outside legislative competence so as to bring it within legislative competence.

Raising a devolution issue once an Assembly Act has been passed

Although there is only a four week period within which a Bill can be referred to the Supreme Court under section 112, if the four weeks pass without a reference being made this does not mean that the resulting Assembly Act is immune from challenge on the grounds that it is outside legislative competence.

Any provision in an Assembly Act (or an Assembly Measure) which is outside of the National Assembly’s legislative competence is not valid law (section 108(2) of GOWA 2006, or section 94(2) in relation to Assembly Measures).  A person may seek to challenge the validity of a provision in legal proceedings. 

Schedule 9 to GOWA 2006 sets out the provisions for dealing with ‘devolution issues’, one of which is legislative competence.  Under Schedule 9, a ‘devolution issue’ means any of the following:

  • the question of whether a provision of an Assembly Act or Assembly Measure is within legislative competence,
  • the question of whether a function is exercisable by the Welsh Ministers, the First Minister or the Counsel General,
  • the question of whether the proposed exercise of a function is within the power of the Welsh Ministers, the First Minister or the Counsel General, including the question of whether the proposed exercise of that function would comply with EU law or the European Convention on Human Rights,
  • the question of whether the Welsh Ministers, the First Minister or the Counsel General have failed to perform a duty imposed on them (including a duty under EU law), and
  • the question of whether a failure to act by the Welsh Ministers, the First Minister or the Counsel General involves a breach of the European Convention on Human Rights.

Schedule 9 contains details about which court will decide a devolution issue that arises as part of any legal proceedings, and allows for the Counsel General and Attorney General to be party to the proceedings insofar as they relate to the devolution issue.  The Counsel General and Attorney General also have the power under Schedule 9 to refer a devolution issue to the Supreme Court, even if it is not the subject of legal proceedings.

Power of the Secretary of State to intervene

Section 114 of GOWA 2006 gives the Secretary of State the power to make an order prohibiting the Clerk of the National Assembly from submitting an Assembly Bill for Royal Assent if the Secretary of State has reasonable grounds to believe that any provisions in the Bill:

  • would have an adverse effect on any non-devolved matter,
  • might have a serious adverse impact on water resources, supply or quality in England,
  • would have an adverse effect on the operation of the law in England, or
  • would be incompatible with any international obligations or the interests of defence or national security.

The Secretary of State has a limited period in which to make an order under section 114, and this is generally within the period of 4 weeks after the Bill is passed by the National Assembly (or, if relevant, within 4 weeks after any determination of the Supreme Court as to whether the Bill is within legislative competence).

Power of the Secretary of State to make consequential provision

Section 150 of GOWA 2006 gives the Secretary of State the power to make such provisions as he or she considers appropriate as a consequence of any provision in an Assembly Act (or Measure), or of any subordinate legislation made under an Assembly Act (or Measure) or by the Welsh Ministers.

This power allows the Secretary of State, amongst other things, to make consequential changes to other laws of the UK where necessary in order to ensure they ‘fit’ alongside laws made in Wales.  Importantly, the Secretary of State cannot use this power to make provision about matters which are within the legislative competence of the Scottish Parliament.

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