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) as amended by the Wales Acts 2014 and 2017. 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 108A of, and Schedules 7A and 7B, 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.)
Section 108A(2) provides that a provision in an Assembly Act is outside competence if a provision fails one of the tests as set out below.
Tests 1 to 5
Test 1 (section 108A(2)(a) of GOWA 2006)
1. An Assembly Act provision cannot form part of a legal jurisdiction other than that of England and Wales. 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”, an important distinction relevant to test 2 under s.108A(2)(b)).
Test 2 (section 108A(2)(b) of GOWA 2006)
2. An Assembly Act provision cannot apply otherwise than in relation to Wales unless the provision in question is ancillary to another provision that is within competence and there is no greater effect otherwise than in relation to Wales than is necessary to give effect to the purpose of that provision. It should be noted that the wording in this restriction is “in relation to Wales” not “in Wales”. Provision may therefore have legal effect in England provided that there is some relationship to Wales.
Test 3 (section 108A (2)(c) of GOWA 2006) – the purpose test
3. An Assembly Act provision must not relate to a reserved matter. Schedule 7A to GOWA 2006 lists the matters that are reserved to the UK Parliament for this purpose, and only UK Parliament can pass primary legislation in relation to these matters. A matter not reserved is devolved to the Assembly.
The question whether a provision of an Act of the Assembly relates to a reserved matter is determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. The Supreme Court held that the expression “relates to” indicates “more than a loose or consequential connection” (Martin v Most  UKSC 10). A provision that merely refers to a reserved matter, or has an incidental or consequential effect on a reserved matter will not “relate to” that reserved matter.
Test 4 (section 108A(2)(d) of GOWA 2006)
4. An Assembly Act provision must not breach any of the restrictions in Schedule 7B to GOWA 2006. These Schedule 7B restrictions include certain restraints on an Assembly Act provision modifying the law on reserved matters, the private law, the criminal law and certain protected enactments, including GOWA itself. There are also restrictions on making certain specified provisions in relation to the functions of ‘reserved authorities’ without the consent of or consultation with the appropriate UK Minister. The appropriate Minister for these purposes will usually be the Secretary of State unless the authority in question is Her Majesty’s Revenue and Customs, when it will be the Treasury.
5. Paragraphs 8 – 11 of Schedule 7B make a distinction between public authorities that are “Devolved Welsh Authorities” and those that are “reserved authorities”.
6. In summary, a devolved Welsh authority (defined in section 157A of GOWA) means: a public authority which is listed in Schedule 9A to GOWA 2006; a public authority whose functions are exercisable only in relation to Wales and are wholly or mainly functions that do not relate to reserved matters; or a governing body of an institution within the higher education sector (within the meaning of section 91(5) of the Further and Higher Education Act 1992) whose activities are carried on, or principally carried on, in Wales.
Consent is not usually required if an Act of the Assembly confers, modifies or removes a function of a devolved Welsh authority.
In addition to a Minister of the Crown or a UK government department, any public authority that does not meet the above conditions of a devolved Welsh authority is a reserved authority. Generally, the Secretary of State’s consent is required for an Assembly Act provision to:
- confer or impose a function on a reserved authority, or modify or remove a reserved authority’s functions;
- modify the constitution of a reserved authority; or
- confer, modify or remove a function specifically exercisable in relation to reserved authorities.
The position in relation to the removal or modification of Minister of the Crown (MoC) functions is dealt with separately in paragraph 11. The general rule is that an Assembly Act provision can remove or modify MoC functions without consent provided that it does not fall into one of the 6 categories of MoC functions listed in paragraph 11(1)(a). Even where no consent is required, there is nonetheless a requirement to consult the appropriate UK Government Minister.
Schedule 7B is complex. Therefore careful and detailed consideration should be given to the question of whether any of its restrictions are breached by the proposed Assembly Bill provision. Whilst in general there are a number of restraints on the Assembly’s legislative competence in principle within Schedule 7B, there are also a number of exceptions to the general rules.
Test 5 (section 108A(2)(e) of GOWA 2006)
An Assembly Act provision must not be incompatible with Convention Rights and EU law.
Dealing with legislative competence issues
Resolution of uncertainties over legislative competence
If there is uncertainty over whether a provision in an Assembly Act or (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, or the question of whether any of its provisions refer to a protected subject-matter to the Supreme Court for a decision as to whether it is within the National Assembly’s legislative competence (see sections 111B and 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 sections 111B or 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 108A(2) of GOWA 2006, (section 108(2) of GOWA 2006, in relation to Assemble Acts passed before 1 April 2018, 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.