Enhanced legislative powers for the Assembly
14.The White Paper proposed increasing the Assembly’s legislative powers in three ways:
as a first stage, by conferring wider powers on the Assembly to make subordinate legislation. The White Paper noted that this proposal would not require legislative amendment (and so there is no provision relating to this in the Government of Wales Act 2006). The first example of a “framework” provision of this kind is contained in the NHS Redress Bill, which was introduced in the House of Lords on 12 October 2005;
secondly, by providing an Order in Council mechanism which would allow Parliament to confer enhanced legislative powers on the Assembly in relation to specified subject matter within devolved fields (i.e. fields in which the Assembly Ministers have or are about to obtain executive functions). The Order in Council would enable the Assembly to pass its own legislation within the scope of the powers delegated by Parliament (as defined by the Order in Council);
thirdly, and following a referendum, by authorising the Assembly to make law on all the matters within its devolved fields of competence without further recourse to Parliament. A referendum could only be triggered with the approval of both Houses of Parliament and of two-thirds of all Assembly members. In the event of a vote in favour of “primary legislative powers”, Parliament would nonetheless continue to be able to legislate for Wales, and the White Paper mentioned the possible need in this circumstance to develop procedures akin to the Sewel motions to regulate the relationship between the Westminster and Holyrood Parliaments.
15.The White Paper stated that the new (first stage) approach to the drafting of power-conferring clauses could begin immediately(10). If Parliament approved the proposals, the (second stage) Order in Council mechanism could be in place from immediately after the next Assembly elections in 2007. The third stage in the process could however only be introduced following endorsement of that proposal in a referendum. The White Paper noted that the Government had no current plans to hold such a referendum, but the Bill implementing its proposals should nevertheless provide the powers for one to be held, so as to avoid the need to have to return to Parliament to secure the necessary legislation if it was ever decided to hold one at some future time.
See as the first example of this approach, NHS Redress Bill 2005, clause17.
