Annex A
Background to the Legislative
Competence Order procedure
The Government of Wales Act 2006 introduced a procedure
whereby the National Assembly for Wales can bring forward proposals
which would extend the Assembly's lawmaking powers by way of Legislative
Competence Orders in Council. The Order in Council mechanism allows
Parliament to confer enhanced legislative powers on the Assembly
in relation to specified subject matter within devolved fields.
These fields are listed in Schedule 5 to the Act. They 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
Orders in Council add new "Matters" to
the "Fields" of legislative competence set out in Schedule
5 to the Government of Wales Act 2006, within which the Assembly
may have legislative competence. For example, Field 18: town and
country planning contains the following Matters at the time of
writing:
Provision for and in connection with -
(a) plans of the Welsh Ministers in relation
to the development and use of land in Wales, and
(b) removing requirements for any such plans.
This does not include provision about the status
to be given to any such plans in connection with the decision
on an application for an order granting development consent under
the Planning Act 2008.
Provision for and in connection with the review
by local planning authorities of matters which may be expected
to affect -
(a) the development of the authorities' areas,
or
(b) the planning of the development of the authorities'
areas.
Provision for and in connection with -
(a) plans of local planning authorities in relation
to the development and use of land in their areas, and
(b) removing requirements for any such plans.
This does not include provision about the status
to be given to any such plans in connection with the decision
on an application for an order granting development consent under
the Planning Act 2008.
Interpretation of this field
"local planning authority" in relation
to an area means -
(a) a National Park authority, in relation to
a National Park in Wales;
(b) a county council in Wales or a county borough
council, in any other case;
"Wales" has the meaning given by Schedule
1 to the Interpretation Act 1978.
There are some general restrictions on the competence
of the Assembly, including that a provision of an Assembly Measure
cannot alter or impose any function of a Minister of the Crown.
Nor can it create any criminal offence punishable by a fine or
imprisonment exceeding a certain level. Certain Acts, such as
the European Communities Act 1972, the Government of Wales Act
1998 and the Human Rights Act 1998 are also protected from modification.
The Orders in Council enable the Assembly to pass
its own legislation within the scope of the powers delegated by
Parliament (as defined by the Order in Council). The Orders do
not themselves change the general law for Wales—they pave
the way to subsequent 'Measures' to change the law applying to
Wales within the devolved areas of legislative competence. Provided
it complies with the provisions of the Government of Wales Act
2006, an Assembly Measure can have the same effect as an Act of
the UK Parliament. In other words it can, for example, modify
existing Acts of Parliament or other enactments and it can make
new provision not covered by existing statutes.
Proposals for draft Legislative Competence Orders
may be introduced by the Welsh Assembly Government, by committees
of the National Assembly, or by individual Assembly Members (chosen
by ballot). They are subject to pre-legislative scrutiny by committees
of the Assembly appointed for this purpose and by committees of
the House of Commons and the House of Lords. Whitehall agreement
("clearance") is a necessary prerequisite before a proposed
Order is referred by the Secretary of State for Wales to each
House at this pre-legislative scrutiny stage.
Following the pre-legislative scrutiny stage, the
National Assembly may agree an actual draft Order. This may take
account of committee recommendations (from either its own committees
or Westminster) arising from pre-legislative scrutiny. The draft
Order may then be laid before Parliament by the Secretary of State
for Wales—and he or she may still decline to do so at this
stage. If the draft Order is laid, it is considered by both Houses
of Parliament, and may be debated by them. Draft Orders at this
stage are not amendable and can only be approved or rejected.
If approved by both Houses, and once it is given the royal assent
in the Privy Council, direct law-making powers are devolved to
the Assembly within the scope of the Order in Council. The Assembly
can then make laws in the form of Assembly Measures, which need
to be passed by the National Assembly but which require no further
approval by either Whitehall or Parliament.
|
