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Referendum for Wales: Extending the Scope of Assembly Powers

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Referendum for Wales: Extending the Scope of Assembly Powers Referendum for Wales: extending the scope of Assembly powers Standard Note: SN/PC/05685 Last updated: 27 October 2010 Author: Paul Bowers Section Parliament and Constitution Centre The National Assembly for Wales can pass laws, known as “measures”, on a restricted list of topics. These are set out in Schedule 5 of the Government of Wales Act 2006, where they are grouped under general headings (“fields”), and then broken down into more specific items (“matters”). This list can be expanded in two ways. On the one hand, Parliament can include a provision in an Act stating that some aspects of what the Act covers can be dealt with by the National Assembly for Wales. It does this by adding them to the list of matters in Schedule 5. On the other hand, the Assembly can request an Order in Council that specifies new topics on which it may legislate. These would usually be matters, in other words, items of some detail, although it is possible that they might include whole new fields. The Government of Wales Act 2006 also includes an arrangement whereby the Assembly could exercise primary law making powers in respect of a much greater number of issues, albeit still restricted within the same broad headings. This would be subject to approval in a referendum. It is contained in Part 4 of the Act. On 9 February 2010 the Assembly passed a Resolution calling for such a referendum. The First Minister gave notice of this to the Secretary of State on 17 February 2010. The Secretary of State had 120 days either to lay a draft statutory instrument containing the Order in Council for the referendum, or to refuse with reasons. On 15 June 2010 the new Secretary of State, Cheryl Gillan, announced that she was unable to lay the draft instrument within the 120 day period, but that she would do so in due course, with the aim of holding the referendum in the first quarter of 2011. Mrs Gillan consulted the Electoral Commission on her proposed question and preamble. The Commission suggested a revised version with the aim of increasing the chance that voters would understand the choices before them, and the implications of a yes or no vote. Mrs Gillan stated on 9 September 2010 that, with the agreement of the First Minister and Deputy First Minister in Wales, she had decided to accept the Electoral Commission’s suggested text. The Welsh Assembly Government suggested that the referendum be held on 3 March This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required. This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public. 2011. On 21 October 2010 Mrs Gillan laid the necessary draft Orders, embodying the Electoral Commission’s question and setting a date of 3 March 2011. This Note explains the current arrangements under which the Assembly legislates, the new approach if the referendum approves a change, and how the move to a referendum has come about. A separate Note will be prepared on the draft Orders. Contents 1 Introduction 3 2 The present arrangements 3 2.1 Procedure 3 2.2 Legislative competence 4 3 The alternative in Part 4 of the 2006 Act 5 3.1 Legislative competence 6 3.2 Procedure 8 3.3 Questions where legislative competence is in doubt 8 4 How to move to Part 4 11 4.1 Referendum 11 5 Pressure for change: how the request for a referendum came about 13 5.1 The Welsh Assembly Government 13 5.2 All Wales Convention 13 5.3 The formal process 16 5.4 The draft referendum question 17 5.5 Secretary of State’s statement 20 5.6 Orders laid 21 2 1 Introduction The legislative powers of the National Assembly for Wales are confined in two ways. First, by the general scope of the subject areas that have been devolved, and secondly by the need for specific legislation to confer powers on the Assembly to make new laws in those areas. The arrangements under the Government of Wales Act 1998 were different: there was no formal distinction between the executive and the legislature, the powers of the Secretary of State for Wales were transferred to the National Assembly for Wales, and it could pass secondary legislation within the devolved fields. These fields were set out in Schedule 2 to the Act. In practice, the Assembly delegated most of its powers to the First Minister, who delegated them to other Ministers. Under the Government of Wales Act 2006 the legislature, the National Assembly for Wales (the Assembly), was separated from the executive, the Welsh Assembly Government (WAG). The latter inherited all powers previously exercised by the old Assembly other than those explicitly transferred to the new Assembly. Thus it exercises functions across the range of devolved subjects. However, at the point of separation (after the 2007 elections) the Assembly itself gained legislative power in only a sub-set of these, with mechanisms to expand the sub-set over time. 2 The present arrangements 2.1 Procedure The provisions under which the Assembly legislates at present are set out in Part 3 of the 2006 Act, with detailed arrangements covered by the Standing Orders. The laws it makes are known as “measures”, and they are enacted when they are passed by the Assembly and approved by Her Majesty in Council.1 A draft measure may be introduced by any Assembly Member; that person, and the Presiding Officer, must each state that they believe the measure would fall within the Assembly’s legislative competence. 2 The draft must then pass through four “stages” before it is passed. In Stage 1 the general principles are considered by a legislation committee, and then by the Assembly, which must agree the principles before the draft can proceed. Stage 2 is an amending committee stage, with line by line scrutiny. At Stage 3 the revised draft measure is considered by the Assembly, and it may be further amended. Stage 4 is the final consideration and vote.3 After the passage of a Measure the Welsh Counsel General, or the Attorney General, may, within a four week period, refer it to the Supreme Court on a question as to whether it falls within the Assembly’s competence.4 The Secretary of State retains rights to block a Measure in certain circumstances. Within four weeks of a Measure being passed, the Secretary of State may make an order under the negative procedure prohibiting the Clerk from submitting it for Royal approval if: 5 1 Government of Wales Act 2006, Section 93. 2 Section 97. 3 Summarised on the National Assembly for Wales website, deriving from Standing Orders. 4 Government of Wales Act 2006, Section 99. 5 Section 101. 3 • it would have an adverse effect on a non-devolved matter, • it might have a serious adverse impact on water resources, supply or quality in England, • it would have an adverse effect on the operation of the law in England, or • it would be incompatible with international obligations, defence or national security. In addition to these provisions, the UK Parliament retains the right to legislate for Wales.6 This reflects its sovereign position, as well being designed for convenience when, for instance, legislation is passed at Westminster to allow the UK to fulfil its international obligations, where that legislation also touches on devolved matters. 2.2 Legislative competence This system seems relatively straightforward. However, there is complexity in the scope of subjects on which the Assembly may legislate, known as its “legislative competence”. This is set out in Schedule 5 of the 2006 Act, Part 1 of which includes a list of everything on which the Assembly may pass measures. It does so by grouping these items under headings. The broad headings, of which there are 20, are known as “fields”, while the detailed items within them are known as “matters”. The fields are: Field 1: Agriculture, fisheries, forestry and rural development Field 2: Ancient monuments and historic buildings Field 3: Culture Field 4: Economic development Field 5: Education and training Field 6: Environment Field 7: Fire and rescue services and promotion of fire safety Field 8: Food Field 9: Health and health services Field 10: Highways and transport Field 11: Housing Field 12: Local government Field 13: National Assembly for Wales Field 14: Public administration Field 15: Social welfare Field 16: Sport and recreation Field 17: Tourism Field 18: Town and country planning Field 19: Water and flood defence Field 20: Welsh language While the Assembly potentially may gain competence in any field, it may legislate only on matters that have been added to the list in Schedule 5, Part 1. When the Act was passed the list included matters only within Field 13, relating to the Assembly itself. All the other fields were blank. 6 Section 93(5). 4 How may new matters be added? Acts of the UK Parliament can provide power for the Assembly to legislate on particular issues by adding new matters to the list in Schedule 5, Part 1.
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