Helping you understand Welsh law

What is devolved?

The Wales Act 2017 replaced the old model of legislative competence (under which a matter was not within the legislative competence of the Assembly unless it was included in Schedule 7 to the Wales Act 2006) to the reserved model.  Under the reserved model everything is devolved to the Assembly unless specifically reserved (because it relates to a matter set out in  Schedule 7A or breaches any of the general restrictions in Schedule 7B).

Under the new reserved model the following matters are not within the legislative competence of the Assembly:

  • broadcasting and other media
  • the British Broadcasting Corporation
  • public lending right
  • government indemnities for objects on loan
  • payments to her Majesty’s Revenue and Customs in respect of property accepted in satisfaction of tax and the disposal of such property
  • safety of sports ground

All other matters are within the Assembly’s competence.  Accordingly the Assembly continues to have legislative competence in relation to 'ancient monuments and historic buildings’.  This legislative competence covers archaeological remains, ancient monuments, buildings and places of historical or architectural interest and historic wrecks.

‘Ancient monuments’ may be those monuments of historic, architectural, traditional, artistic or archaeological interest. They may include buildings, structures, works or excavations (or the remains of such things) vehicles, vessels, aircraft or other movable structures (or their remains) or any thing or group of things that evidences past human activity.

The core of the law in this subject is to be found in primary legislation (or ‘statutes’) made by either the UK Parliament or the National Assembly.

The principal Acts that currently apply in relation to the historic environment in Wales are the:

  • Ancient Monuments and Archaeological Areas Act 1979 
  • Planning (Listed Buildings and Conservation Areas) Act 1990 
  • Historic Environment (Wales) Act 2016.

These Acts confer extensive powers on the Welsh Ministers to designate monuments of national importance, areas of archaeological importance and buildings of special architectural or historic interest. The Acts also confer powers on local authorities to designate areas of archaeological importance and conservation areas. Designation places controls on works to designated historic assets or areas and confers various powers on the Welsh Ministers and local authorities for their protection.

The Protection of Wrecks Act 1973 confers similar powers on the Welsh Ministers to designate areas around the sites of historic wrecks in the sea adjacent to Wales.

There is a large amount of subordinate legislation made under the Acts (such as orders, regulations and schemes). Before the devolution of power to the National Assembly in 1999, subordinate legislation was made either on an England and Wales basis or separately for Wales by the Secretary of State for Wales.  A number of these pre-devolution instruments remain in force. The functions of the Secretary of State for Wales were transferred to the National Assembly for Wales in 1999 (SI 1999/672) and this included a number of the functions to make subordinate legislation in those statutes which existed at that time.  From then on the National Assembly exercised the transferred powers to make subordinate legislation for Wales until 2007 when the powers to make subordinate legislation were further transferred to the Welsh Ministers on the coming into force of the Government of Wales Act 2006.

In addition to the Acts and subordinate legislation, there is policy, advice and guidance relating to the historic environment. The principal documents are:

  • Planning Policy Wales 
  • Technical Advice Note 24: The Historic Environment 
  • Historic Environment Records in Wales: Compilation and Use (statutory guidance)
  • Conservation Principles for the Sustainable Management of the Historic Environment in Wales
  • Best-practice guidance titles prepared by the Welsh Government’s Historic Environment Service (Cadw).

As well as domestic legislation and guidance, there are the following international conventions:

  • European Cultural Convention — 19 December 1954
  • European Convention on the Protection of the Archaeological Heritage (Revised) — 6 May 1969 and revised 16 January 1992
  • European Convention for the Protection of the Architectural Heritage — 3 October 1985 and revised 16 January 1992
  • European Landscape Convention — 20 October 2000
  • Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 and protocols of 1954 and 1999 
  • Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970
  • Convention Concerning  the Protection of the World Cultural and Natural Heritage (World Heritage Convention) 1972
  • UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001

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