Power to the Welsh

The Government of Wales Act 2006 received Royal Assent on 25 July 2006. Following the Welsh Assembly elections in May 2007, most of the act’s provisions will come into effect and a new devolved government will be implemented in Wales. The act gives effect to proposals set out in the UK Government white paper ‘Better Governance for Wales’ (June 2005) and will bring about the legal separation of the executive branch (Welsh Assembly Government) and the legislative branch (National Assembly for Wales) to create an Assembly Commission and a Welsh Consolidated Fund.

From 1964 to 1999 UK Government executive functions underwent decentralisation to Wales with the support of the Welsh Office. Pre-1999 the Welsh Office had devolved power to deal with fields of government such as agriculture, forestry, fisheries, food, economic development, education and training.

The Government of Wales Act 1998 created an elected National Assembly for Wales made up of 60 assemblymembers. The existing statutory functions of the Secretary of State for Wales were transferred to the assembly and Acts of Parliament were able to confer certain new statutory functions on the assembly in relation to Wales.

The 1998 act provided for functions of the assembly to be delegated to assembly ministers. However, the act did not give the assembly any power to make primary legislation. Following the 1998 act, the National Assembly for Wales was a single corporate body, exercising both executive and parliamentary functions.

There was a lack of clarity as to the legal separation between ‘government’ and ‘parliament’ – this was a ‘legislature’ that did not have its own powers to produce primary legislation.

The Government of Wales Act 2006
In its 2005 General Election manifesto, Labour pledged to address these issues by creating a stronger assembly with improved legislative powers. It would end the assembly’s status as a corporate body, formally separate the executive and legislative branches of the assembly, reform the electoral system and the first minister and minister would be appointed by the monarch.

These proposals were all set out in the 2005 white paper that led to the 2006 act. One of the key provisions of the act is the separation of the executive and legislature. The legislative branch will include the 60-strong National Assembly for Wales and the executive will include the Welsh Assembly Government, comprised of the first minister, welsh ministers, deputy welsh ministers and the counsel general.

The welsh ministers will produce secondary legislation (ie statutory instruments), manage public expenditure (£14bn in 2007-08), formulate policy and proposals for secondary legislation, oversee the functioning of the nondepartmental public bodies and local government, and grant licences and permissions.

The National Assembly for Wales will nominate the first minister, approve the annual budget, scrutinise the Welsh Assembly Government and formulate assembly measures or, following a ‘yes’ vote in a referendum, assembly acts. The functions that were conferred on the assembly prior to the act will transfer to the Welsh ministers. The structure of government will resemble that of the relationship between Scotland and Westminster. The act also creates a new post of counsel general, who will be the legal adviser to the Welsh
Assembly Government. The counsel general will be appointed by the monarch after being nominated by the first minister and agreed by the National Assembly. The counsel general does not have to be an assembly member.

Section 93 (1) of the act gives the assembly the power to “make laws, to be known as measures of the National Assembly for Wales… referred to in this act as ‘assembly measures’”. However, there are several restrictions on the assembly’s powers to make law by assembly measures. The law must relate to a ‘field’ and a ‘matter’, as set out in Schedule 5 of the act.

There are 20 fields listed in Schedule 5. Examples of these include economic development, environment, health and health services, and social welfare. In order to make a new law, the assembly must first seek legislative competence from Parliament in the form of a ‘matter’. Within one of the Schedule 5 fields, the assembly may propose to Parliament that it legislate on a specific ‘matter’ relating to that field. If Parliament chooses to go forward it can approve an order of council under Section 95 or Schedule 11 of the act, or by an Act of Parliament.

Once the power has been conferred, Parliament cannot control the use of that power. Criminal offences can be created, but this will be subject to a maximum penalty that does not exceed two years’ imprisonment and/or a level five fine. An assembly measure also cannot alter or amend acts of Parliament that are constitutional, for example the European Communities Act 1972, the Human Rights Act 1998, the Data Protection Act 1998, or, with certain exceptions, the act itself. Finally, the law should not consist of any provision that is incompatible with European Community law or European Convention rights.

The act also contains provisions for the assembly to have the power in the future to make primary law in some devolved areas. The primary laws created under these provisions will be known as ‘Acts of the National Assembly for Wales’ and can come into play only if two thirds of all assembly members vote in favour of a referendum, the UK Government and Parliament approve and there is a ‘yes’ vote in a referendum of the Welsh public.

The law in practice
Practitioners dealing with Welsh clients or clients who operate in Wales need to keep abreast of differences between English and Welsh law where an issue relates to one of the devolved fields outlined earlier. Working out if a Welsh law applies will be key. This will need to be an ongoing process, as statutory instruments will also continue to be made. Monitoring and researching changes in law applicable to Welshrelated instructions will be an important part of the legal service that is provided.

Practitioners should also take into account the new role of Welsh ministers, as clients may be interested in lobbying them in order to influence the way in which they exercise their new powers.

This act will bring about a new way of working with Welsh clients and companies operating in Wales. If firms fail to stay up-to-speed with new legal developments in this jurisdiction they are likely to lose business to those who have paid more heed to these changes. _
Bridgette Wilcox is a partner at Eversheds