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Welsh law is the primary and secondary legislation generated by the National Assembly for Wales, using devolved authority granted in the Government of Wales Act 2006 and in effect since May 2007. Each piece of Welsh legislation is known as an Act of the Assembly. The first Assembly legislation to be proposed was the NHS Redress (Wales) Measure 2008. This was the first time in almost 500 years that Wales has had its own laws, since Cyfraith Hywel, a version of Celtic law, was abolished and replaced by English law through the Laws in Wales Acts, enacted between 1535 and 1542 during the reign of King Henry VIII.
Legislative competence of the National Assembly for Wales
Both the Government of Wales Act 1998 and the Government of Wales Act 2006 set out areas of devolved responsibility for the National Assembly for Wales (commonly known as the Welsh Assembly). The 2006 Act granted the Assembly legislative competence to make laws (known as Assembly Measures) in clearly defined "matters". In order to draft laws within its areas of responsibility, but where the powers of legislative competence have not been devolved to it, the Welsh Assembly can request these powers using a Legislative Competency Order or can receive the transfer of power and the right to make laws through parliamentary bills at Westminster.
Each Order in Council for an area of legislation must be approved by the Secretary of State for Wales, both Houses of Parliament, and the Queen in Council, in order for the Assembly to legislate in that area. Once the Queen has approved the Order, the new area of legislative competence is added to Schedule 5, Part 1 of the Government of Wales Act 2006. There is a Counsel General for Wales who oversees the approval and creation of these laws, and gives advice to the Welsh Government.
The 2006 Act also included provisions which would allow for a referendum to be held on whether to grant the Assembly legislative competence to pass primary legislation to be known as "Acts of the Assembly" in all matters within twenty subject areas without the need for further Legislative Competency Orders. A referendum under these provisions was held in March 2011 and resulted in a vote in favour of granting the assembly the competence to pass the Acts of the Assembly. Therefore, the Assembly now has the legislative competence to pass Acts of the Assembly in all twenty devolved areas.
Following the devolution of legislative competence to the Welsh Assembly in some area of responsibility, it is unlikely that the UK Parliament would draw up legislation in that area without a Legislative Consent Motion being passed by the Welsh Assembly to allow them to do so (Assembly Standing Order 26). This is done to preserve the autonomy of the Welsh Assembly, and to prevent legislative confusion.
Areas to legislate: The devolved areas
These areas are "subjects" where the National Assembly for Wales can make legislation in the form of an Act of the Assembly.
- Agriculture, fisheries, forestry, and rural development
- Ancient monuments and historic buildings
- Economic development
- Education and training
- Fire and rescue services and promotion of fire safety
- Health and health services
- Highways and transport
- Local government
- Public administration
- National Assembly for Wales
- Social welfare
- Sport and recreation
- Town and country planning
- Water and flood defence
- Welsh language
The Assembly can also legislate in areas that affect only the Assembly itself, which is why the National Assembly for Wales field is included.
Referendum to make Acts of the Assembly
The Welsh Assembly was able to make only Assembly Measures, but the Assembly was given the option to call for a referendum, with added approval from the UK Parliament, to make Acts of the Assembly. This would not change much of the Assembly Measures system, and if the referendum should win, the Assembly Measures passed before that date would still be in force. It was considered that Assembly Measures are a build on to the Acts of the Assembly if the Assembly would these powers in future.
The referendum was held on 3 March 2011. The majority of the participants voted 'Yes' to the question "Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?".
Even so, future Welsh order in council laws may face veto from the UK Parliament, but the Assembly still is able to make laws in areas already devolved because once the referendum is approved, there are powers that are already in the government of Wales Act 2006 to make laws already approved by parliament when the act was passed. The Assembly can still request to make laws in areas using the Order in Council system but if the UK Parliament wants to legislate in a devolved area, it will require a motion to be passed by the Welsh Assembly, similar to the way the Scottish Parliament work at present. The power to make Acts of the Assembly are called Subjects, which are listed in schedule 7, part 1 of the Government of Wales Act 2006.
English law and contemporary Welsh law
English law still applies to Wales under the present devolved settlement. Contemporary Welsh law governs the local aspects of Welsh life, whilst English law governs the more generic aspects. Because Welsh laws are ultimately derived from Acts of the Parliament of the United Kingdom, some commentators consider this new system of laws to be another branch of English law. Unlike Scotland, for example, which has its own criminal and civil justice system, England and Wales still have a unified justice system.
English law still applies in Wales, but some laws in England, about matters that are devolved in Wales, may not apply in Wales. Once the Assembly has legislative competency to legislate in an area using Acts of the Assembly, the National Assembly can lead Wales down a different route, compared to English law. Some actions can be unlawful in Wales, but not in England or Scotland. For example, using an electric shock collar on a cat or dog is unlawful in Wales, but not in the rest of the United Kingdom.
There are Acts of the United Kingdom Parliament that are classed as "Wales-only laws". Each Act contains provisions for the Welsh Assembly to make subordinate legislation on. Sometimes such Acts can also confer power to the National Assembly for Wales. An example of such a Wales-only law is the Transport (Wales) Act 2006. This Act allows the National Assembly to make Orders to enforce the provisions in the Act. The Act does not confer power to the Assembly to make Assembly Measures.
A major difference is also the use of the Welsh language, as laws concerning it apply in Wales and not in England. The Welsh Language Act 1993 is an Act of the Parliament of the United Kingdom, which put the Welsh language on an equal footing with the English language in Wales with regard to the public sector. Welsh can also be spoken in Welsh courts.
Wales as a jurisdiction
As there is no criminal law within contemporary Welsh law, Wales is not generally considered a fourth jurisdiction of the United Kingdom. This is because the judiciary and the courts follow England and Wales law, which is made by the United Kingdom Parliament, and is not specific to Wales. Although Welsh law is recognised as separate in operation, this is not sufficient for Wales to constitute a separate legal jurisdiction. The One Wales agreement between Labour and Plaid Cymru called for a review of criminal justice matters in Wales, and the question of whether they should be devolved to Wales, proposing that a Criminal and Youth Justice System within Welsh law. Currently, however, there has been no such devolution of justice to the Assembly.
- "BBC NEWS | UK | Wales | Assembly powers bill becomes law". news.bbc.co.uk. Retrieved 2016-09-19.
- STANDING ORDER 26 - Consent in relation to UK Parliament Bills
- BBC NEWS | Wales | Wales politics | First Welsh law's royal approval
- "Electric shock dog collars banned in Wales". The Telegraph. 25 March 2010. Retrieved 19 September 2016.
- Transport (Wales) Act 2006
- See Page 29
- One Wales agreement