The First Minister stated this week that the National Assembly’s new legislative powers should come into effect from 5 May, assuming that the Assembly votes in favour of the order that the Assembly Government has now laid. His statement is here, and the order itself is here. However, the prospect of that has led to other issues emerging about just how broad those powers are.
There are certainly some difficult issues that will need to be addressed in the coming months and years about the scope of the Assembly’s powers. While the powers conferred by Part 4 of the Government of Wales Act 2006, and particularly Schedule 7, are much more ample and clearly defined than those in Part 3 and Schedule 5, there are still plenty of questions about them. A good deal may come to depend on how the courts approach them, and how they apply the interpretative aids set out in section 108(7) (stipulating a purposive approach and applying a pith-and-substance test) and section 154 (providing for the courts to construe legislation narrowly if that ensures it is within legislative competence – a process sometimes known as ‘reading down’).
One provision that’s unlikely to be particularly relevant is section 150, despite this particular hare being set running through the Western Mail earlier in the week (in which I’m quoted rather selectively). Section 150 empowers the Secretary of State to make ‘consequential provisions’ amending other legislation following laws made by the Assembly, and applies to the legislative powers already in force under Part 3 of the Act as well as the ‘Assembly Act’ powers. Like many provisions of the 2006 Act relating to legislative powers, this follows a precedent from the Scotland – in this case, section 104 of the Scotland Act 1998. I gather than section 104 is quite widely used in practice; its use has certainly been uncontroversial on the whole. The reason for it is the simple one that the exercise of devolved legislative powers often has knock-on effects on other matters – whether how existing legislation operates in other parts of the UK, or on reserved (in Wales, non-devolved) matters. Section 104 orders are the means to sort out such tangles. But if they relate to devolved powers, the Sewel convention applies to them as it would to primary legislation, so the consent of the Assembly Government (on behalf of the Assembly) would be needed, even if that’s not an explicit statutory requirement.
This means that section 150 can’t be used to unpick devolved powers, but it can be used to sort out problems arising from their exercise. Given the legal and practical entanglement of a huge number of matters across the England-Wales border, and the range of non-devolved matters, there’s likely to be extensive use of this power, and in itself that’s not likely to interfere with devolved powers. Indeed, it facilitates them.
That’s not to say that the powers of the Secretary of State don’t include matters that could have that effect. She has extensive powers under section 114 of the Act to intervene where Assembly legislation might adversely affect non-devolved matters; water supply, resources or quality in England; the law operating in England; or UK international obligations. Her powers in relation to water are particularly broad, augmented as they are by section 152. The Attorney General can refer any bill to the UK Supreme Court if there is doubt about whether it is within the Assembly’s legislative competence, even if it has passed all stages in the Assembly (and has been certified as being within competence by both the Presiding Officer and the minister or other member in charge of it). With the exception of the provisions relating to water, which are unique to Wales, all these provisions mirror ones that apply in Scotland where they haven’t caused any particular problem to date.
However, the issues in Wales are rather different. Wales has already set a precedent by rejecting a legislative consent motion under the Sewel convention, for example. The combination of the intricate overlap of devolved and non-devolved functions in Wales, and political tensions between the Welsh and UK governments, are likely to make Wales’s experience of legislative devolution bumpier than it has been in Scotland. Don’t be surprised if these provisions become quite actively used in Wales in a way they haven’t been in Scotland.