The National Assembly for Wales has legislative competence to pass laws relating to agriculture, horticulture, animal health and welfare and rural development pursuant to section 108 of, and paragraph 1 of Schedule 7 to, the Government of Wales Act 2006.
However, there are important limitations on the National Assembly's legislative competence in these areas. The National Assembly does not have legislative competence to pass laws on topics which fall within any of the following exceptions:
- hunting with dogs;
- regulation of scientific or other experimental procedures on animals;
- import and export control and regulation of movement of animals, plants and other things apart from (but subject to provision made by or by virtue of any Act of Parliament relating to the control of imports or exports)—
(a) the movement into and out of, and within, Wales of animals, animal products, plants, plant products and other things related to them for the purposes of protecting human, animal or plant health, animal welfare or the environment or observing or implementing obligations under the Common Agricultural Policy, and
(b) the movement into and out of, and within, Wales of animal feedstuff, fertilisers and pesticides (or things treated by virtue of any enactment as pesticides) for the purposes of protecting human, animal or plant health or the environment.
- Authorisations of veterinary medicines and medicinal products.
This list of exemptions is not exhaustive and there are other limitations on the National Assembly’s competence to pass laws in relation to agriculture, horticulture, animal health and welfare and rural development set out in Part I of Schedule 7 to the Government of Wales Act 2006.
To date, the National Assembly has made one Act in relation to agriculture, namely the Agricultural Sector (Wales) Act 2014. Before this Act received Royal Assent, the question of whether or not its provisions were within the National Assembly’s legislative competence was referred to the Supreme Court under section 112 of the Government of Wales Act 2006. The Supreme Court found that the provisions of the Bill were within the National Assembly’s legislative competence. More details on the Supreme Court’s decision can be found here.
The European Union (EU) has made Regulations and Directives in relation to agriculture and horticulture.
EU Regulations have effect within the UK, and therefore in Wales, without the need for any further legislation to be made (see section 2(1) of the European Communities Act 1972). However, often, Regulations do not provide individuals with rights that can be upheld against other individuals or against the State. Therefore, the Welsh Ministers, or the UK Government, may need to make subordinate legislation to give effect to these Regulations in Wales. For example, the Welsh Ministers must make subordinate legislation to give effect to their proposals for implementing in Wales the Regulations of the European Parliament and of the Council of the EU on the common agricultural policy.
EU Directives bind the Member States of the EU to which they are addressed as to the result to be achieved but leave it up to each Member State to choose how they will implement the Directive. Therefore, the Welsh Ministers, or the UK Government or a Secretary of State need to take action, which may include making subordinate legislation, to give effect to Directives in Wales. For example, the Welsh Ministers have legislated to give effect to Council Directive 85/337/EEC (OJ No. L175, 5.7.85, p40) on the assessment of the effects of certain public and private projects on the environment (as last amended by Directive 2003/35/EC (OJ No. L156, 25.6.03, p17)).
Designation for the purposes of section 2(2) of the European Communities Act 1972
Where Welsh Ministers, or a Secretary of State of the UK Government, propose to take action to give effect to EU law in Wales, they must first have been ‘designated’ by an Order in Council made under section 2(2) of the European Communities Act 1972 as having the power to take action in relation to that particular aspect of EU law.
A number of Orders of the Privy Council have been made which designate the Welsh Ministers as having the power to take action in relation to certain fields of EU law in relation to Wales. These fields include:
- The Common Agricultural Policy (see the European Communities (Designation) (No.3) Order 1999 (SI 1999/2788); the European Communities (Designation) (No.5) Order 2010 (SI 2010/2690);
- Veterinary and phytosanitary fields for the protection of public health (see the European Communities (Designation) (No.2) Order 2008 (SI 2008/1792);
- The requirement for an environmental impact assessment (EIA) of the impact on the environment of projects likely to have significant effects on the environment (see the European Communities (Designation) (No.3) Order 2007 (SI 2007/1679).
These designations are subject to several limitations.
Acting under these designations, the Welsh Ministers have made statutory instruments to give effect to EU law in Wales.
The Welsh Ministers are able to exercise a wide range of executive functions in relation to agriculture, horticulture, animal health and welfare and rural development. These functions are set out in a variety of Acts of the UK Parliament and include powers for the Welsh Ministers to make subordinate legislation and to bring prosecutions.
In addition to the functions set out in these Acts, functions have been conferred on the Welsh Ministers by subordinate legislation made under these Acts.
The functions of the Minister of Agriculture, Fisheries and Food or the Secretary of State under all of these Acts (save for the Animal Health Act 2002 and the Animal Welfare Act 2006) which the Welsh Ministers now exercise, were transferred to the National Assembly for Wales by a series of Orders in Council made under section 22 of the Government of Wales Act 1998. The Orders which transferred functions to the National Assembly in relation to agriculture and horticulture are as follows:
- National Assembly of Wales (Transfer of Functions) Order 1999 (SI 1999/672);
- National Assembly of Wales (Transfer of Functions) Order 2000 (SI 2000/253);
- National Assembly of Wales (Transfer of Functions) Order 2001 (SI 2001/3679);
- National Assembly of Wales (Transfer of Functions) Order 2004 (SI 2004/3044).
The National Assembly’s functions were then transferred to the Welsh Ministers by section 162 of, and paragraph 30 of Schedule 11 to, the Government of Wales Act 2006.
In certain limited circumstances, a Minister of the Crown will still be able to exercise the functions of making subordinate legislation transferred to the Welsh Ministers by these transfer of functions orders. Section 58 of, and paragraph 5 of Schedule 3 to, the Government of Wales Act 2006, when read with paragraph 26 of Schedule 11 to that Act, provides that a power of a Minister of the Crown to make subordinate legislation which has been transferred to the Welsh Ministers continues to be exercisable by the Minister of the Crown (Secretary of State) as if it had not been transferred for the purpose of:
- implementing any Community obligation of the United Kingdom,
- enabling any Community obligation to be implemented,
- enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Community Treaties to be exercised, or
- dealing with matters arising out of or related to any such obligation or rights or the operation of section 2(1) of the European Communities Act 1972.
Between May 2007 and May 2011, the National Assembly for Wales had the legislative competence to make Measures pursuant to section 94 of, and Schedule 5 to, the Government of Wales Act 2006. Field 1 of Schedule 5 gave the National Assembly the power between May 2007 and May 2011 to make Measures in relation to the following Matter:
The red meat industry, in relation to–
(a) increasing efficiency or productivity in the industry;
(b) improving marketing in the industry;
(c) improving or developing services that the industry provides or could provide to the community;
(d) improving the ways in which the industry contributes to sustainable development.
Interpretation of this field
In this field “the red meat industry” means all of the activities comprised in–
(a) breeding, keeping, processing, marketing and distributing cattle, sheep and pigs (alive or dead), and
(b) producing, processing, marketing, manufacturing and distributing products derived to any substantial extent from those animals (apart from milk and milk products, fleece wool and hides).
For the purposes of this definition–'cattle' means bovine animals, including bison and buffalo;'pigs' means porcine animals, including wild boar and other feral pigs.
The Red Meat Industry (Wales) Measure 2010 was made in exercise of the National Assembly’s legislative competence under Matter 1.1 of Part 1 of Schedule 5 to the Government of Wales Act 2006.