Legislative Competence: Analysis of the Welsh Act 2017 and Devolution

This report analyzes legislative competence, focusing on the process of devolution in the UK, particularly concerning the Welsh Assembly. It begins by defining devolution and legislative competence orders, explaining how powers are transferred from the UK Parliament to regional bodies like the Welsh Assembly. The report then delves into the specifics of the Welsh Act 2017, comparing its provisions to the previous Welsh Act 2006, and detailing how the new legislation defines and restricts the Assembly's legislative competence. It examines the reserved powers model, contrasting it with the Irish and Scottish models, and discusses criticisms of the new legislation, including concerns about the balance of power between London and Cardiff, particularly in areas like judiciary and policing. The report concludes by highlighting the significant changes brought about by the 2017 Act and its impact on how legislative competence and devolution function in Wales.

Running head: LEGISLATIVE COMPETENCE
Legislative Competence
Name of the Student
Name of the University
Author Note

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Question 2
Part A
According to MacKinnon (2015) devolution is the act of transferring or delegating authority to a
lower level, generally by the central government to the regional or local administration. A
Legislative competence order is also a form of devolution.
Legislative competence order is a special kind of legislation secondary in nature which delegates
the power of enacting legislation form one parliament to another. The order is generally passed
by the UK parliament to enable the welsh assembly to enact law in relation to specific policy
areas. The proposed law is known as bill and the enacted laws are known as acts. Approval has
to be gained by the LOC by the welsh assembly, secretary of state, both houses of parliament and
finally the Queen in Council. In UK devolution means statutorily granting powers to the national
assembly of Wales, the London Assembly, the northern Ireland assembly and the Scottish
parliament and subsequently to their executive bodies such as the welsh government, the Scottish
government and northern Ireland executive. The process of devolution is different from
federalism where the state is a unitary state as the sub national authority ultimately vests in the
central government. Laws which create developed assemblies or parliaments can be amended or
repealed by the central government just like any other statue (Simpson 2015).
One of the examples of devolution to Ireland was that on 12th April 2010 several legislative
powers had been transferred to the Irish assembly which included justice and policing powers. In
1997 the newly created welsh parliament had the authority to make primary legislations in all
areas of policy which are not reserved expressly for the UK parliament like international affairs
and national defense.

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Part B
Section 3 of the Welsh Act 2017 replaces section 108 of the Welsh Act 2006 with section
108A in relation to Legislative Competence. The new legislation provides the following
regulations with respect to legislative competence. According to section 108A (1) of the 2017
Act any act of the assembly would not be considered as a law if such provisions are not within
the scope of Assembly’s legislative competence. According to section 108A (2) of the 2017 Act
a regulation would not be within the competency if it extends to otherwise than to England and
Wales only, it is applicable otherwise than with respect to Wales or imposes, modifies, removes
or confers functions which can be exercised otherwise than with respect to Wales, it is in relation
to matters which are reserved, it violates any restrictions as provided in part 1 of scheduled 7B in
relation to any exception provided in part 2 of the schedule to the restrictions and it is not
compatible with the EU laws or convention rights. However section 2(b) is not applicable on
provisions which are attached to a provisions of an Assembly Measure or an Act of the
Assembly or towards a devolved regulation if an legislation of the parliament as well as it must
not have any greater effect other than in relation to Wales or related to functions exercised
otherwise related to Wales, other than what is required to provide effect to the object of such
provision. According to section 108A (6) of the 2017 Act in order to determine whether an Act
of the assembly is related to a reserved matter reference to the objective of the provision is made
which respect to its effect under all circumstances among all other things.
The above discussed provision replaces the provisions of section 108 of the 2006 Act. According
to the provisions of 108(1) an act of the assembly had the power to make any provisions which
could be made by the parliament. According to section 108(2) the acts would not be considered
as law if they are not within the competence of the assembly. A provisions would be deemed to

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be outside the legislative competency of the assembly if it violates restriction in part 2 schedule 7
in relation to any exception provided in part 3 of the schedule to the restrictions and it is not
compatible with the EU laws or convention rights.
According to Blogs.lse.ac.uk (2017) the new Act is a better way to resolve the ever existing
criticism with respect to legislative competence of Wales. However not all the problems posed
by the reserved model would be addressed through the enactment of the new legislation. Unlike
the Irish or Scottish model of legislative competence Wales has a very reserved model. Form
long the model of devolution which is adopted by the UK parliament in relation to Wales had set
an example how the process should not be done. The new legislation also been criticized by
many eminent personalities. Richard Rawlings serving the Welsh advisory committee of the law
commission stated that the new legislation “carries the seeds of its own destruction”. There have
been many situations where the law making power of the Welsh assembly has been challenged
before the supreme court because of allegedly not meeting legislative competency. Few
examples of this is in relation to trade union law where it had been argued by the UK
government that as the law is not developed it an attempt of the welsh government to legislate in
the area would end up in the supreme court.
Although a strong and lasting devolution settlement has been provided by the new legislation,
only the reserved versus conferred powers model debate have been settled by it. Discussion over
whether authority should settle in London or Cardiff especially over judiciary and policing is
bound to continue. Thus the legislation creates problems as much as it creates and where one
step is taken to resolve the problem two steps are taken backwards. There is a significant
difference which would be observed with the passing of the 2017 act in relation to how
legislative competence and devolution worked prior to it. The legislation now sets out what

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power the legislative assembly of Wales does not have rather than the power it has in relation to
making legislation (Harvey 2017).

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References
Blogs.lse.ac.uk. (2017). How not to do devolution: Wales and the problem of legislative
competence | British Politics and Policy at LSE. [online] Available at:
http://blogs.lse.ac.uk/politicsandpolicy/wales-and-the-problem-of-legislative-competence/
[Accessed 16 Nov. 2017].
Harvey, M., 2017, September. Devolution in the United Kingdom: An Ongoing Process.
In Federal Power-Sharing in Europe (pp. 207-228). Nomos Verlagsgesellschaft mbH & Co. KG.
MacKinnon, D., 2015. Devolution, state restructuring and policy divergence in the UK. The
Geographical Journal, 181(1), pp.47-56.
Simpson, M., 2015. As Scotland and Wales demand greater devolution Northern Ireland is
handing power back to Westminster. Democratic Audit UK.