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 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. They do this by adding new "Matters" to the "Fields" of legislative competence set out in Schedule 5 to the Government of Wales Act 2006.

These proposals for draft 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.

Introduction of this proposed Order

The National Assembly for Wales (Legislative Competence) (Education) Order 2010 was laid before the National Assembly by the then Minister for Children, Education, Lifelong Learning and Skills, Jane Hutt AM, on 19 October 2009. The proposed Order was referred to the Assembly's Legislation Committee No. 4, which formally agreed to undertake pre-legislative scrutiny of the proposed Order on 22 October 2009. The Committee issued a call for written evidence and subsequently held five evidence sessions, including with the then Minister. Others giving evidence included Estyn, the Welsh Local Government Association, representatives of local authorities, Governors Wales, the National Association of Head Teachers Cymru, the Association of School and College Leaders, the NASUWT, Cymdeithas Ysgolion Dros Addysg Gymraeg (CYDAG, the Association of Schools for Welsh-medium Education) and Undeb Cenedlaethol Athrawon Cymru (UCAC, the National Union of Teachers of Wales). The Welsh Assembly Committee published its report on 27 January 2009.