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The law-making process in England and Wales
The law-making process in England and Wales

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8.3 The creation of the Welsh Assembly

In 1998 the Government of Wales Act created the National Assembly for Wales as a single corporate body. This in effect provided the Assembly with the right to create secondary legislation and have 60 Assembly Members (AMs). However, in 2006 the Government of Wales Act (GOWA) was passed in the Westminster Parliament and transferred power to the Welsh Assembly to make its own law (primary legislation) within a number of specific areas, such as education and health. This means that the laws passed in the Westminster Parliament still apply to Wales but certain subject areas are now transferred to the Welsh government that resides in the Welsh Assembly in Cardiff.

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Figure 9 National Assembly for Wales

The Welsh Assembly, which includes the 60 AMs, is the legislature for Wales, alongside the Welsh Government, which includes the First Minister, Deputy Ministers, Ministers (in the Cabinet), and the Counsel General. It is important to note that the legislature is separate from the Welsh Government, which is known as the executive. This recognises the separation of powers between the legislatures, which includes all AMs from different political parties. Just like the UK government, the political party that holds the majority of seats in the Welsh Assembly forms the government. The function of the Welsh Government is to consider and implement policy decisions through the legislative process, whereas the Welsh Assembly legislature (all the AMs) scrutinise proposed legislation being put forward by the Welsh government: this reflects the same process that takes place in the Westminster Parliament when new legislation is being debated.

Activity 9 Constitutional considerations

Below is an extract from a journal article by Peter Leyland (2011), ‘The multifaceted constitutional dynamics of UK devolution’. Read this extract and make some notes.

The most limited form of devolution was devised for Wales.1 Although Wales retained its distinctive language and culture when originally brought into the U.K., from the standpoint of law and administration it lacked Scotland’s distinctive legal and education system and Wales was more integrated with England. Moreover, it was clear when devolution was introduced that there was much less popular support for this change in Wales.2 However, the limitations of the Government of Wales Act 1998 were such that the devolved institutions in Wales have already been granted additional powers following the passage of the Government of Wales Act 2006. The major original difference was that the Welsh Assembly, unlike the Scottish Parliament and Northern Ireland Assembly, was not granted the power to pass legislation in its own right. The fact that Welsh Bills had to take their place in the queue before being shepherded through the Westminster Parliament by the Welsh secretary was regarded as a serious drawback.3 Otherwise the Welsh Assembly only had the power to pass secondary legislation.4 In consequence, there were almost immediate calls after devolution to give the Welsh Assembly the power to pass laws.5 The Westminster government responded by granting the Assembly powers to propose a form of law known as a ‘Measure of the National Assembly of Wales.’6 These measures are enacted by first receiving scrutiny and approval by the Assembly and, then, the measure is referred to the Westminster Parliament for approval by resolution of each house before being recommended as a new form of Order in Council.7 This procedure created a special form of delegated legislation which potentially could be vetoed at Westminster. However, in practice, the new procedure overcame the problem of securing the passage of legislation required for Wales through the Westminster Parliament. The revised arrangements for Welsh legislation might have proved problematic if there was a strong conflict of wills between the Welsh Assembly and the government in power at Westminster—for example, if different political parties had a majority in the Assembly and at Westminster. In another sense, these measures to enhance the lawmaking capacity of the Welsh Assembly8 have a wider, incidental impact, as there is now distinctively ‘English’ legislation introduced before the Westminster Parliament.9 A referendum in accordance with the provisions of the Government of Wales Act 2006 was held in March 2011 which approved by a large majority (63.5 per cent for with 36.5 per cent against) the conferral of full legislative powers upon the Welsh Assembly.10 In consequence, the Welsh Assembly in common with the Scottish Parliament and Northern Ireland Assembly will soon have powers to pass legislation concerning the policy areas which fall under its competence.

There are some obvious parallels between Scotland and Wales with respect to the electoral system and the organization of the legislative and executive bodies.11 The Government of Wales Act 1998 set up a single chamber Assembly for Wales, consisting of sixty members12 who must be elected every four years by an additional member system. Each elector is given two votes. Assembly members for each constituency are returned by simple majority, while the four Assembly members for each region are returned by a system of proportional representation based on party lists.

In common with Scotland, the Welsh Assembly is required to form policy and take decisions in its particular areas of responsibility. Also, as in Scotland, the cabinet style of government is formed following an election. The newly elected members of the Welsh Assembly vote for a first minister. Once elected, the first minister has the power to appoint an Executive Committee of Assembly Secretaries, which forms the equivalent of a cabinet. The ministerial portfolios of this executive committee (the combinations of policy areas allocated to the individual assembly secretaries) determine the areas of competence of the scrutiny committees (or subject committees) that are subsequently formed to provide executive oversight. The appointments to the executive committee can be from a single party or a combination of parties.

As with Scotland, the Welsh executive took over, by means of transfer orders, most of the administrative functions of the secretary of state for Wales under the Government of Wales Act 1998.13 Cabinet members have the equivalent of departmental responsibility for their given policy areas. Although the National Assembly of Wales was formed as a single corporate body, a de facto division emerged postdevolution between the Welsh Assembly government and the Welsh Assembly as a representative body. The Welsh Assembly government has been recognized under the Government of Wales Act 2006 as an entity separate from, but accountable to, the National Assembly. One significant difference between the approach to devolution in Scotland and Wales is that while the Scottish Parliament was granted general competence, subject to the reserved matters under the Scotland Act, in the case of Wales powers were conferred according to particular areas of policy.14 The Assembly and executive are also responsible for many Welsh nondepartmental governmental organizations, funded and appointed by government. 15

From this brief discussion, it will be apparent that there are clear parallels between the general frameworks of Scottish and Welsh devolution, including, for example, the method of election and the way a devolved executive is formed. This resemblance will grow a great deal closer should the proposal to give the Welsh Assembly full lawmaking powers gain the approval from the Welsh electorate in 2011. However, the Welsh Assembly has no devolved tax-raising powers (unlike the proposals for Scotland), and no such powers are in immediate prospect.

Notes

1 For a compelling study of the parameters of Welsh devolution, see Richard Rawlings, Delineating Wales: Constitutional, Legal and Administrative Aspects of National Devolution (2003).

2 The margin in favor of Welsh devolution in the referendum was less than 0.2 percent.

3 Richard Rawlings, Law Making in a Virtual Parliament: the Welsh Experience, in Devolution, Law Making and the Constitution (Robert Hazell & Richard Rawlings, eds., 2005).

4 Otherwise the Welsh Assembly only had the power to pass secondary legislation.

5 See the Richards Commission.

6 Government of Wales Act 2006, s. 93.

7 GWA 2006 s. 94. Orders in Council are usually secondary legislation issued under powers in a parent act, and they are often used for transferring powers and responsibilities.

8 See Better Governance for Wales, Cm. 6582, 2005.

9 Whereas English and Welsh legislation were often combined the introduction of Assembly Measures with a different procedure means that the Westminster Parliament now passes legislation which only applies to England. This trend will be accentuated as the Welsh Assembly acquires its own law-making powers. See Richard Rawlings, Hastening Slowly: The Next Phase of Welsh Devolution, Pub. L. 824–852, 841 (2005).

10 GWA 2006 s. 104 and s. 105. See http://www.bbc.co.uk/news/uk-wales-politics-12648649.

11 GWA 1998, ss. 3–7.

12 An obvious reason why the Welsh Assembly has fewer members than the Scottish Parliament is because Wales has a smaller population.

13 GWA s. 22(2) and schedule 2.

14 The principal matters devolved are: agriculture, forestry, fisheries and food, environmental and cultural matters, economic and industrial development, education and training, health, housing, local government, social services, sport and tourism, town and country planning, transport, water and flood defenses, and the Welsh language.

15 For example, the Welsh Health authorities and the Welsh Tourist Board.

Copyright 2011 Oxford University Press and New York University School of Law. (Leyland, 2011, pp. 260–2).

Could the Welsh Assembly make its own legislation?

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Comment

The Government of Wales Act (GOWA) 1998 only allowed the Welsh Assembly to create and implement legislation after it had first obtained permission from the Westminster Parliament. The system operated through what was known as obtaining ‘legislative competence’, which meant that for the Welsh Assembly to be able to make legislation on a specific area this must first be approved either in a Westminster Bill (later a statute) or through an Order in Council process which is sanctioned by the GOWA. Once the legislative competence had been given to the Welsh Assembly this right became a continuing one and there is no need to seek future permission to legislate on this area again. This meant that the Welsh Assembly only had the right to go ahead and formulate new legislation if it had first been approved by the Westminster Parliament. An example is the Welsh Assembly’s right to create its own legislation dealing with special educational needs in Wales. In effect the Welsh Assembly was building up a large selection of areas which had been devolved to them and this enabled them to create new legislation as and when it is necessary without the need to seek further permission.

The laws that were previously passed by the Welsh Assembly were referred to as measures and not statutes. Measures are primary legislation but still need to be approved by the monarch, just as a statute receives Royal Assent. The introduction of an Assembly Measure had the same effect as a statute passed by the Westminster Parliament. There are some restrictions which are outlined in Part 3 of the GOWA but otherwise the Welsh Assembly has devolved powers to make its own legislation in certain areas. However, in 2006 the Government of Wales Act (GOWA) was passed in the Westminster Parliament and transferred power to the Welsh Assembly to make its own law (primary legislation) within a number of specific areas, such as education and health. This means that the laws passed in the Westminster Parliament still apply to Wales but certain areas are now transferred to the Welsh government that resides in the Welsh Assembly in Cardiff.