Internet Newsletter for Lawyers |
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In her article in the July/August 2001 issue of "Internet Newsletter for Lawyers", Carolyn Kirby, then Deputy Vice President of the Law Society of England and Wales, explained the importance of lawyers being aware of the powers of the National Assembly for Wales, the subordinate legislation it is making and the policy guidance it is issuing. She commented on the difficulty of finding a central source of information which sets out these matters.
The powers of the National Assembly are spread over some 400 Acts of Parliament, many of which change as new legislation emerges from Parliament. Many of these powers enable the Assembly to make subordinate legislation and issue guidance which can be different to that made and issued by central government departments for England. For the public in general and practitioners in particular, both in Wales and in England, it is vital that these differences are known, together with knowledge of the Assembly's changing powers as new Acts of Parliament are enacted.
The fundamental difference between the Assembly's powers and that possessed by the Scottish Executive is that the Assembly's powers are not exercisable by reference to subject areas. They are exercisable by reference to specific Acts of Parliament, EU competencies and subordinate legislation. Many Acts of Parliament and subordinate legislation relating to Wales divide powers between the Assembly and central government Ministers. There are no general principles or conventions applying to such divisions. Consequently it is dangerous to assume that all powers in an Act of Parliament about Education or the Environment, for example, are exercisable by the Assembly in relation to Wales. Each provision in each Act of Parliament has to be scrutinised to ascertain whether the Assembly has a power under a particular section or Schedule. In some sections, the power may be exercisable only by the Assembly, in other sections it may be exercisable by a central government Minister in relation to Wales as well as to England. In some sections the Minister and the Assembly may have "concurrent" powers in a section, or joint powers or the power may only be exercisable after consultation with either the Minister or Assembly, or with the agreement of either.
The same situation can arise with regard to subordinate legislation, particularly that made before 1st July 1999 (the day when the Assembly commenced the exercise of its executive functions) and can arise in Orders made under section 2(2) of the European Communities Act 1972 giving competencies to the Assembly.
To assist all those who wish to ascertain the powers of the Assembly and of central Government in Wales, a website has been established by Cardiff Law School.
The website, at www.wales-legislation.org.uk, is managed by an experienced team at the Law School and is supported by a grant awarded by the Arts and Humanities Research Board. It sets out the following information by subject area in relation to Wales:
1. An analysis of every section and Schedule of each Act of Parliament which
is either listed in Orders transferring powers to the Assembly or is set out in
Acts of Parliament enacted after July 1999 by reference to:
2. Commencement orders either made by the Assembly or by central government which commence provisions of the post July Acts which are referred to in 1 above.
3. Orders made under section 2(2) of the European Communities Act 1972 enabling the Assembly to implement EU Directives, with or without central Government participation.
4. Statutory Instruments made before July 1999 under which Ministerial powers are transferred to the Assembly by Transfer of Functions Orders made under section 22 of the Government of Wales Act 1998.
5. General Statutory Instruments made by the Assembly with a summary of their contents, showing amendments made by these Statutory Instruments to existing legislation.
6. General Statutory Instruments made by central government under the Acts set out under 1 above with a summary of their contents and showing amendments made by these Instruments to existing legislation.
It is also planned to list the circulars and guidance issued by the Assembly in relation to their powers. Access to the website is free and its editors will be pleased to receive any feedback on the way in which it sets out the information.
The Law School intends to make submissions to the Commission recently established by the Assembly's First Minister, Rhodri Morgan, to enquire, among other matters, into the Assembly's functions. The submission will include an explanation of the current complexities involved in ascertaining the Assembly's functions and those of central government post devolution.
David Lambert is Research Fellow at Cardiff Law School and Legal Adviser to the Presiding Office, National Assembly for Wales. The website team comprises three researchers working under the direction of Professor David Miers and David Lambert. e-mail LambertD@cardiff.ac.uk.
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