Helping you understand Welsh law

What is devolved?

The National Assembly for Wales now has the legislative competence to make laws ('Acts') in relation to education, vocational, social and physical training, the careers service and the promotion and application of knowledge. There is one subject specific exception to the National Assembly’s competence in relation to research councils, but it should be noted that the exceptions which apply to the other specified subjects of National Assembly legislative competence also apply in relation to its legislative competence in the field of education. For provision about the National Assembly’s legislative competence see section 108 of, and Schedule 7 to, the Government of Wales Act 2006 (GOWA 2006).

Although the National Assembly’s power to legislate in this area is very wide, the UK Parliament continues to be able to pass laws for Wales relating to education and training and it has done so on a number of occasions since the National Assembly gained its current legislative competence following the national referendum in Wales in 2011.

Between 2007 and 2011, the National Assembly could legislate by Measure, where the specific power to legislate on a topic was conferred by Order in Council made under GOWA 2006 (known as legislative competence orders or 'LCOs'). A number of LCOs and Measures relating to education were made and continue in force.

The Welsh Ministers have a general supervisory role in the current statutory system of education and training in Wales. The Welsh Ministers promote Bills on education and training in the National Assembly for Wales and they now exercise the vast majority of the executive and subordinate legislative powers set out in education statutes (whether made by the  National Assembly or the UK Parliament). One of the Welsh Ministers is usually appointed to be responsible for education and training matters and he or she is served by the Welsh Government Department for Education and Skills.

The Welsh Ministers are under a general duty to promote the education of the people of Wales by virtue of section 10 of the Education Act 1996. This provision says that “the Secretary of State must promote the education of the people of England and Wales”. This function of the Secretary of State (and many others) was transferred “in relation to Wales” to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672) with effect from 1 July 1999. The function was transferred again from the National Assembly to the Welsh Ministers by Schedule 11 to GOWA 2006 which came into effect following the National Assembly elections in May 2007. The effect of these transfers is that section 10 in its application to Wales should be read as meaning “The Welsh Ministers must promote the education of the people of Wales”.

The education statutes enacted prior to the commencement in May 2007 of GOWA 2006, but still in force in relation to Wales, should be read with care as a result of the way in which UK central government functions were devolved to Wales. References to 'the Secretary of State' will in most, but not all, cases now mean 'the Welsh Ministers' in their application in relation to Wales as the result of transfer of functions orders made under the Government of Wales Act 1998 and the further transfer of functions made by Schedule 11 GOWA 2006. Also where functions were conferred on the National Assembly expressly in Acts of the UK Parliament between 1999 and 2007, the provisions enacting those functions should be read as meaning 'the Welsh Ministers' by virtue of the transfer of National Assembly functions by Schedule 11 to GOWA 2006.

The UK Government’s Secretary of State for Education continues to exercise education functions in relation to Wales in limited (but important) areas; for example, the Secretary of State sets the pay and conditions of teachers working in Welsh maintained schools and is primarily responsible for implementing EU obligations on the mutual recognition of professional qualifications throughout England and Wales.

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