Wales Act 2017
The Wales Act 2017 (WA 2017) enshrines the National Assembly, the Welsh Government and the laws that they make as a permanent part of the UK’s constitutional arrangements. Neither the National Assembly nor the Welsh Government can be abolished without the agreement of the people of Wales.
The second significant change brought about by the WA 2017 was the move from a ‘conferred powers’ model of establishing what is devolved to a ‘reserved powers model’. This is also the model that underpins the devolution settlement in Scotland and Northern Ireland.
Reserved powers model
Under a reserved powers model a legislature is able to legislate on any matter unless it is expressly prevented from doing so. In the Welsh context this means that the Government of Wales Act 2006 (GOWA 2006) now contains a list of subjects upon which it cannot legislate (as they are reserved to the UK Parliament) instead of a list of subjects upon which it can. Although this means that there is a presumption in favour of something being devolved, in practice it does not involve significant change because the list of subjects now reserved largely mirrors the list of subjects that was previously conferred.
Section 108A GOWA 2006
The National Assembly can only make laws that are within its legislative competence. The test for the National Assembly’s legislative competence is set out in Section 108A of the Government of Wales Act 2006 (GOWA 2006). This new section sets out the limits on the legislative competence of the National Assembly. The National Assembly can make any law that does not;
(a) extend otherwise than only to England and Wales (so the Assembly cannot make laws which are enforceable outside the joint jurisdiction of England and Wales);
(b) apply or create, change or remove functions that are exercisable otherwise than in relation to Wales;
(c) relate to any of the reserved matters listed in Schedule 7A to GOWA 2006
(d) breach any of the restrictions in Schedule 7B to GOWA 2006; or
Each element of the test set out in Section 108A of GOWA 2006 must be satisfied for provisions to be within legislative competence. If any of the tests in steps (a) – (e) is not satisfied, then those provisions will be outside competence and the National Assembly will not be able to legislate about them.
(e) breach EU law or Convention (human) rights
The matters referred to at Section 108A(2)(c) which are reserved to the UK Parliament and over which the National Assembly cannot legislate are set out in Schedule 7A to GOWA 2006. The reservations are split into 2 categories, namely general reservations and specific reservations.
The general reservations are listed under the following sub headings;
- The Constitution
- Public service
- Political parties
- Single legal jurisdiction of England and Wales
- Foreign affairs
- Financial and Economic matters
- Home affairs
- Trade and Industry
- Social Security, Child Support, Pensions and Compensation
- Health, Safety and Medicines
- Media, Culture and Sport
- Land and Agricultural Assets
If the provisions of an Assembly Act relate to any of the matters listed in Schedule 7A, they will be outside the National Assembly’s legislative competence.
Where Assembly Act provisions do not relate to any of the reserved matters set out in Schedule 7A of GOWA 2006, it may still be outside competence if any of the other competence tests in section 108A are breached.
Schedule 7B contains a number of restrictions which apply even where the provisions do not relate to reserved matters. Some of these restrictions already applied but many are new.
Schedule 7B is set out in 2 parts, Part 1 sets out general restrictions on the National Assembly’s legislative competence and Part 2 provides general exceptions from part 1.
The restrictions in Schedule 7B include constraints on Assembly Act provisions modifying the law on reserved matters, private law, criminal law and specific enactments such as the Human Rights Act 1998 and the Civil Contingency Act 2004. There are also provisions concerning the circumstances in which Assembly Act provisions relating to matters that are not reserved will only be within competence if UK ministerial consent is given.
The general exceptions in Schedule 7B include an exception where the Assembly Act provisions restate the law (in other words, re-making it without substantive change).
Other Devolved Provisions
The WA 2017 also devolved further executive powers to the National Assembly and the Welsh Ministers and these include;
- devolving greater responsibility to the National Assembly to run its own affairs, to include deciding its name;
- transferring responsibility to the Welsh Ministers for ports policy, speed limits, bus registration, taxi regulations, local government elections, sewerage and energy consenting up to 350 MW;
- transferring responsibility to the Welsh Ministers for marine licensing, conservation and energy consents in the Welsh offshore regions. Along with extending the responsibility for building regulations to include excepted energy buildings;
- devolving power over Assembly elections;
- devolving powers over the licencing of onshore oil and gas extraction;
- aligning the devolution boundary for water and sewerage services along the border between England and Wales; and
- establishing a President of Welsh Tribunals to oversee devolved tribunals and allowing cross – deployment of judicial office holders.
Executive ministerial functions
The WA 2017 also confers ‘common law type’ powers on Welsh Ministers, described as executive ministerial functions. Executive ministerial functions mean a function of Her Majesty which is exercisable on her behalf by a Minister of the Crown. This includes functions involving expenditure, but not functions in relation to the prerogative nor any functions imposed by legislation. The common law powers transferred under section 58A capture the Crown’s ability to do things that a natural person can do. This includes, for example, the power to incur expenditure, enter into contracts and share information.
These executive ministerial functions can be exercised, both in relation to devolved functions and ancillary to executive functions conferred on Welsh Ministers in reserved areas.