The way in which power has been shared within the UK (including as a result of devolution) and the UK’s membership of the European Union mean that the people of Wales are governed in a variety of ways and are subject to laws from a variety of sources. The question of which body governs a particular issue, and which laws apply, depends on the subject matter. As well as the UK Parliament, powers to make laws also lie with the European Union and the National Assembly for Wales. Similarly a range of powers have been conferred on UK Government Ministers (Secretaries of State) and on the Welsh Ministers. (More information on the legislative competence of the EU can be found here, and on the legislative competence of the National Assembly can be found here.)
Where power lies in Wales
The power to legislate in relation to Wales is shared between the European Union, the UK Parliament and the National Assembly for Wales. In practice, however, European Union laws generally apply across all European Member States, and since 2007 (and the enhanced legislative competence of the National Assembly) it is rare for the UK Parliament to pass laws that relate only to Wales (rather Parliament's laws normally apply to England and Wales, Great Britain or the UK as a whole). The National Assembly on the other hand generally only passes laws that relate to Wales.
Power to make subordinate legislation is routinely delegated (by the UK Parliament or the National Assembly) to UK Ministers (Secretaries of State) or the Welsh Ministers depending on whether it relates to a devolved subject. Again, generally Secretaries of State will make subordinate legislation that applies to England only, England and Wales, Great Britain or the UK as a whole (on non-devolved matters); while the Welsh Ministers make subordinate legislation in relation to Wales only.
Administrative (or executive) power in Wales lies in a variety of places, depending on subject area, including:
- the Welsh Ministers;
- UK Government Secretaries of State;
- local authorities;
- numerous other public bodies, e.g. Natural Resources Wales.
HM Courts and Tribunals Service exercises judicial powers for the combined jurisdiction of England and Wales. (More information about the division of power into legislative, executive and judicial power can be found here.)
How laws are made for Wales
The sources of law which apply in Wales are as follows:
- Laws of the European Union – these prevail over any inconsistent UK laws. EU laws must be in areas which are within the legislative competence of the EU, and they may relate to matters that are either devolved or non-devolved at the UK level.
- Primary legislation made by the UK Parliament – in order to impact upon Wales, an Act of Parliament must ‘extend’ to Wales (i.e. Wales must be within the territorial application of the Act) and its provisions must ‘apply’ in relation to Wales. An Act of Parliament may apply differently in relation to Wales compared to other parts of the UK (i.e. it may include provisions specifically for Wales). Acts of Parliament may relate to either devolved or reserved matters, though they will not normally relate to devolved matters unless the National Assembly has consented. Acts of Parliament may be passed in areas within the legislative competence of the EU (except those areas for which the EU has exclusive competence), but they may not conflict with EU law.
- Primary legislation made by the National Assembly for Wales – Assembly Acts (and the previous form of primary legislation in Wales, Assembly Measures) must be within the legislative competence of the National Assembly in order to be valid laws. In other words, Assembly Acts may only relate to non reserved matters.
- Subordinate legislation made under an Act of Parliament – this legislation may be made by the Secretary of State or, in relation to Wales, by the Welsh Ministers.
- Subordinate legislation made under an Assembly Act or Assembly Measure – this legislation is made by the Welsh Ministers and always relates to non reserved matters.
- ‘Soft law’ – this category includes guidance written by EU institutions such as the European Commission, and guidance and Codes of Practice written by governmental departments, Welsh Ministers and UK or Welsh public bodies - it is not legally binding, but will have some legal effect.
- Byelaws – local authorities, and in some limited circumstances other public authorities, have powers to make rules relating to local matters on a range of subjects from tattoo parlours to flood management. See the Local Government Byelaws (Wales) Act 2012 for more information on the powers of county councils, county borough councils and community councils in Wales to make byelaws.
It is not technically correct to refer to ‘Welsh law’ because Wales shares a legal jurisdiction (that is, a legal system) with England and there is therefore only one formal body of law which extends to England and Wales. The body of law is, strictly speaking, known as ‘the laws of England and Wales’ (and it is not correct either, therefore, to refer formally to ‘English law’). Nevertheless, due to devolution the law which applies in Wales is increasingly diverging from the law which applies in England and it is helpful to refer to a body of ' Welsh law' as a label.The Wales Act 2017 recognised this and inserted new section A2 into GOWA which provides that “The law that applies in Wales includes a body of Welsh law made by the Assembly and the Welsh Ministers”. It goes on to “recognise the ability of the Assembly and the Welsh Ministers to make law forming part of the law of England and Wales”. The Welsh Government’s view however is that the shared legal jurisdiction is a constitutional anomaly, and in consequence it established a ‘Commission on Justice in Wales’ to consider the issue – as well as the wider effectiveness of the justice system in Wales – in detail.
Notwithstanding the potential for further constitutional reform, this website aims to help you understand ‘Welsh law’ and for these purposes this means all laws which apply to those matters in relation to which the National Assembly for Wales has legislative competence or in relation to which the Welsh Ministers may make provision by subordinate legislation. Therefore, the ‘Welsh law’ on a topic may be made by the National Assembly for Wales, or the Welsh Ministers, but it may also include laws made by the UK Parliament, or a Secretary of State even where it is now capable of being made by the National Assembly for Wales or the Welsh Ministers.