Devolution of legislative power
The legislative competence of the National Assembly for Wales is set out in the Government of Wales Act 2006 (GOWA 2006”), as amended by the Wales Act 2017. The law in relation to local government is generally devolved to the National Assembly for Wales. However, there are some reservations to be aware of, including:
• Police and Crime Commissioners
• Registration of births, death and places of worship
• Licensing of the provision of entertainment and late night refreshments, and the sale and supply of alcohol
• Anti-social behaviour
• Sunday trading
Between 2007 and 2011, the National Assembly for Wales 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'). Two Assembly Measures relating to local government were made and are still in force; the Measure 2011. Local Government (Wales) Measure 2009 and the Local Government (Wales) Measure 2011.
Following a referendum in 2011, the Assembly gained primary lawmaking powers in relation to specific subjects without involvement from Westminster or Whitehall. Schedule 7 to GOWA 2006 listed the subjects to which a provision in an Act of the Assembly must relate to, in order to be within the Assembly’s legislative powers. The Local Government Byelaws (Wales) Act 2012, Local Government Democracy Wales Act 2013 and the Local Government (Wales) Act 2015 are all examples of primary legislation made during the Fourth Assembly (May 2011 – May 2016).
The Wales Act 2017 amends GOWA 2006 by moving to a reserved powers model of devolution for Wales. The change from a conferred powers model means that the Assembly may legislate on any subject except those specifically reserved to the UK Parliament. One of the major changes affecting local government is that local government elections in Wales and National Assembly for Wales elections are generally devolved following the Wales Act 2017. Although certain matters in relation to elections for membership of the Assembly and local government elections in Wales are reserved in Schedule 7A of GOWA 2006. Further information in relation to elections is available on the elections pages.
In addition to the Acts of Parliament and of the Assembly that make provision relating to the structure of local government in Wales, there are numerous Acts that impose duties or confer functions on local authorities. There are also powers to make orders, rules and regulations relating to local government under these enactments. Certain matters are often left to be prescribed by order or regulations.
Devolution of executive power
The Government of Wales Act 1998 (GOWA 1998) provided for the transfer of functions from UK Government Ministers to the National Assembly for Wales. Under GOWA 2006, those functions were transferred from the National Assembly for Wales to the Welsh Ministers. The Welsh Ministers now exercise the majority of the executive and subordinate legislative powers in relation to local government whether those powers are conferred by an Assembly Act or an Act of the UK Parliament.
As the result of the transfer of functions, statutes that were enacted prior to the commencement of GOWA 2006 (in May 2007) should be read with care. 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. Where functions were conferred expressly on the National Assembly for Wales in Acts of the UK Parliament between 1999 and 2007, the functions should also be read as being exercisable by 'the Welsh Ministers'.