Devolution Settlement

Last modified 5 October 2010 | Cymraeg

The Government of Wales Act 2006 delivered the Government’s commitment to move forward the devolution process. It has three key elements:

  • formal separation between the Assembly and the Welsh Assembly Government to avoid confusion and improve effective scrutiny;
  • enhanced legislative powers for the Assembly through a streamlining of procedures so that its priorities for legislation are secured more quickly and easily; and
  • changing the electoral provisions so that unsuccessful candidates in Assembly constituency elections are unable to become Assembly Members through the regional list under the Additional Member System.

Formal Separation

The Assembly established in 1999 was a body corporate with executive as well as legislative and scrutiny responsibilities. While the majority of the executive functions were delegated to Ministers, subject committees – with the relevant Minister as a member – also played an important role in policy development. However, this structure could mean that committees were not able to devote sufficient time to questioning Ministers and that it could be difficult to switch from a mode of consensual policy development to one of of scrutiny.

The existing Assembly had made efforts to make clear the distinction between its legislative and executive arms. In particular, from 2002, they resolved to create a de facto separation, adopting the title ‘Welsh Assembly Government’ for the executive.

The Government of Wales Act 2006 replaced the corporate body with a new National Assembly, similar to its predecessor in having 60 members – 40 directly elected by the ‘first-past-the-post’ system to represent individual constituencies, and 20 selected under the Additional Member system of proportional representation, each representing one of five electoral regions. However, this Assembly no longer exercises the executive functions of Government. The Act also established a separate executive, the ‘Welsh Assembly Government’, made up of Ministers who are members of, and accountable to, the Assembly itself.

Enhanced Legislative Competence

The Act gives the Assembly a new power to make laws, to be known as Measures of the National Assembly for Wales. Measures may be made only in respect of matters which fall within the Assembly’s legislative competence. These matters are set out in Schedule 5 to the Act.

However, the Act provides for further matters to be added to the fields in Schedule 5, either by the use of Orders in Council or by the inclusion of framework powers in primary legislation.

  • For details of current Orders in Council click here.
  • For details of Bills in the current session with Framework Powers click here.

The Order in Council procedure requires that the Assembly first formulate a request for enhanced powers. Following discussion between the Welsh Assembly Government, relevant Whitehall departments and the Wales Office, a proposed draft Order will be published for pre-legislative scrutiny in both Parliament and the Assembly. After completion of the scrutiny process, the Assembly Government will submit the draft Order – modified as appropriate to take account of recommendations arising from pre-legislative scrutiny – for approval by the Assembly. If it is approved, the First Minister will formally convey the request for an Order in Council to the Secretary of State.

The Secretary of State then has 60 days in which either to lay the draft Order before Parliament or to write to the First Minister giving notice of his refusal to do so. If the Secretary of State agrees to lay the Order, it requires the approval of both Houses of Parliament before coming into operation.Once an additional matter has been inserted into Schedule 5, a draft Assembly Measure relating to that matter can be brought forward in the Assembly.

Assembly Measures

The new devolution settlement in Wales brought about by the Government of Wales Act allows the Assembly to pass legislation, known as Assembly Measures. Assembly Measures can do anything an Act of Parliament can do within the general constraints set out in the Act.

  • For details of Assembly measures currently before the National Assembly for Wales click here.

Electoral Provisions

In previous Assembly elections, candidates have been free to stand both in a constituency election and in the election for the region of which that constituency is a part. This meant that candidates who were not successful in the constituency election had a second chance of being elected, especially if they were highly placed on the party list. The 2006 Act removed this option. Candidates must now choose whether to stand in the constituency or regional election, but are barred from standing in both.

Devolution Guidance Notes

The devolution guidance notes (DGNs) set out advice on working arrangements between the UK government and the devolved administrations, and are an introduction to the main principles involved in the managing of the devolution settlements, bilateral relations, correspondence, parliamentary business, legislation and concordats.

The Devolution Guidance Notes that apply to the arrangements in Wales are:

Powers of the Welsh Assembly Government

Primary Legislation

Acts of Parliament frequently give powers to Ministers of the Crown to exercise certain functions or to make secondary legislation. In more recent legislation, those functions will often have been given directly to the Assembly or Welsh Ministers where they concern the exercise of devolved functions.

Transfer of Functions Orders

Transfer of Functions Orders are used to transfer functions – in relation to Wales – from Ministers of the Crown to the National Assembly or the Welsh Ministers. Details of Transfer of Functions Orders made to date can be found here.

Designation Orders under the European Communities Act 1972

These are Orders which designate the Welsh Ministers as an authority which may exercise the power to make regulations conferred by section 2(2) of the European Communities Act 1972 and specifying the matters in relation to which that power may be exercised. Details of Orders designating the Welsh Ministers can be found here.

Assembly Measures

In future Welsh Ministers will also obtain executive powers from Assembly Measures.