Background
The Government of Wales Act 1998
3.In July 1997 the Government published a White Paper, “A Voice for Wales” (Cm 3718), setting out its proposals for the creation of a Welsh Assembly. Following endorsement of those proposals in a referendum held on 18 September 1997, a Government of Wales Bill was introduced into the House of Commons in December 1997. The Bill as amended received Royal Assent in July 1998.
4.The Government of Wales Act 1998 (“GoWA”) provides for the establishment of a National Assembly for Wales consisting of 60 Assembly Members (AMs). 40 AMs are elected on a first past the post basis from constituencies identical with Parliamentary constituencies and a further 20 AMs are elected from five electoral regions, four from each region(1). These additional AMs are drawn from party regional lists(2), and seats are allocated having regard both to the votes given for each party’s list in a region and the number of constituency seats which the party has secured in that region; the effect is to provide compensation, in the form of regional seats, for parties which secure a significant number of votes across an electoral region without obtaining an equivalent proportion of the constituency seats in that region(3). The first elections to the National Assembly were held in May 1999.
5.Unlike the devolution arrangements put in place at the same time in Scotland and Northern Ireland, GoWA does not provide for a separation of the legislature from the executive. By section 1, the National Assembly is established as a corporate body, which exercises its functions on behalf of the Crown. The Government’s policy, as set out in “A Voice for Wales”, was that the Assembly should assume the statutory powers and duties which the Secretary of State for Wales had hitherto exercised. Provision was made for Orders in Council to transfer these predominantly executive responsibilities to the Assembly(4) and subsequent Acts of Parliament have conferred additional powers on the Assembly. The Assembly’s powers, whether transferred by Orders in Council or conferred directly by Act of Parliament, include a large number of subordinate order-making powers (including some powers enabling the Assembly to amend primary legislation), but the Assembly is not empowered by GoWA to make primary legislation for Wales; this remains Parliament’s responsibility.
6.Although its statutory functions are in law made the responsibility of the Assembly as a corporate body, in practice most of the Assembly’s powers (excluding those of a predominantly legislative character) are exercised on its behalf by Assembly Ministers(5) under delegation arrangements approved by the Assembly in plenary session(6). The Assembly holds Ministers to account for exercise of these functions, and, under standing orders, has the function of approving the Assembly’s Budget. Financial provision for the Assembly is made available to it by the Secretary of State for Wales, out of moneys voted by Parliament(7).
The Act in Operation
7.In February 2002, in debating its Review of Procedure, the Assembly unanimously approved a motion calling for “the clearest possible separation between the Government and the Assembly which is achievable under current legislation”. Since March 2002, those (Ministers and civil servants) exercising executive powers on behalf of the Assembly have used the title “Welsh Assembly Government” to distinguish themselves from the wider Assembly, and the Assembly’s support service has adopted the title “Assembly Parliamentary Service”.
8.In July 2002 the Welsh Assembly Government appointed a Commission, under the chairmanship of Lord Richard of Ammanford, to review the operation of the devolution arrangements(8).
9.Having analysed the consequences for development and implementation of distinctive policies for Wales of the Assembly’s limited legislative powers, the Richard Report recommended that the Assembly should be able to make primary legislation for Wales (although Parliament would continue to have important legislative responsibilities for Wales as well).
10.The Commission therefore concluded, in the light of both this and of its analysis of the implications of the Assembly’s corporate body status, that the status quo was not a sustainable basis for the future development of the Assembly. It recommended that the existing Assembly should be “replaced by two separate bodies – an executive and a legislature”.
11.On 6 October 2004, the Assembly adopted a resolution calling for early legislation to amend GoWA.
12.In June 2005 the Secretary of State for Wales published a White Paper(9)”Better Governance for Wales”, setting out proposals for new legislation to:
effect a formal separation between the executive and the legislative branches of the Assembly;
reform existing electoral arrangements;
enhance the legislative powers of the Assembly..
Formal separation between the executive and legislative arms of the Assembly
13.Under the proposals:
the Welsh Assembly Government would be established as an entity separate from, but accountable to, the National Assembly. The First Minister would be appointed by Her Majesty on the nomination of the Assembly, and the First Minister would appoint other Ministers and Deputy Ministers with Her approval. All these Ministers would act on behalf of the Crown, rather than as delegates of the Assembly as now (but would have to resign if they lost the confidence of the Assembly). A new statutory office of Counsel General would be created, the post holder being responsible for providing legal advice to the Assembly Government on matters relating to their devolved functions. Ministers would, as now, be supported by staff who would be civil servants;
most of the statutory functions which currently are exercised in the name of the Assembly would formally become the responsibility of Assembly Ministers. The Assembly’s current order-making powers would in future generally be exercised by Ministers, although procedures would be in place either for drafts of orders to be approved by the Assembly before they are made (affirmative procedure) or for orders to be annulled after having been made (negative procedure). Ministers would also be subject to duties relating to sustainable development and promotion of equality of opportunity which GoWA currently places on the Assembly as a whole;
Ministers would be accountable to the Assembly for the exercise of their powers, and for the use made of the budgetary resources voted each year by the Assembly out of a new Welsh Consolidated Fund (into which the Secretary of State would make payments out of moneys voted by Parliament. The requirement for Ministers to be members of the Assembly’s subject committees would end, and the Assembly would in general have more freedom to determine its own “internal architecture” of committees. The Assembly rather than Ministers would be authorised to advise Her Majesty on appointments to the offices of the Auditor General for Wales and the Public Services Ombudsman for Wales.
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.
Reforming the Assembly’s electoral arrangements
16.The White Paper contained three proposals relating to this:
individuals should henceforth no longer be able to be candidates in constituency elections and at the same time be eligible for election as regional members from party lists.
while there should be no change to the requirement that Assemblies are elected for fixed four-year terms, new provision (equivalent to that made for the Scottish Parliament) should be made for extraordinary elections within a four-year term, to apply in those exceptional circumstances where it was clear that an Assembly as presently constituted could not perform its functions properly;
the Assembly should have a new power to allow it to arrange for public information campaigns to promote participation in its elections.
The Act
17.The Act , which contains 6 Parts, 166 sections and 12 Schedules, gives effect to the White Paper proposals. Its provisions are further described below. Many of these are re-enacted, with amendments, from GoWA.
In the event that a review of Parliamentary constituency boundaries in Wales resulted in an increase in the number of constituencies, provisions in Schedule 1 to the Act allow for an increase in the number of regional Members in order to maintain the overall 2:1 ratio.
The Act allows an individual to stand for election for an electoral region, but in practice no individual candidates were elected from an electoral region in either 1999 or 2003.
The results of the elections in 1999 and 2003 are set out in the Table below:
| 1999 | 2003 | |||
|---|---|---|---|---|
| Constituency seats won | Regional seats won | Constituency seats won | Regional seats won | |
| Labour Party | 27 | 1 | 30 | 0 |
| Plaid Cymru | 9 | 8 | 5 | 7 |
| Conservatives | 1 | 8 | 1 | 10 |
| Lib Democrats | 3 | 3 | 3 | 3 |
| Other | 0 | 0 | 1 | 0 |
| 40 | 20 | 40 | 20 | |
GoWA, ss. 22-26. See eg National Assembly for Wales (Transfer of Functions) Order, SI 672 of 1999, which came into force on 1 July 1999.
GoWA , s.53, refers to an Assembly First Secretary and Assembly Secretaries, but in practice the holders of these offices are referred to as Ministers.
GoWA, s.62, makes provision for delegation of the Assembly’s functions to the First Secretary and subsequently to other Assembly Secretaries.
GoWA, ss. 80-81.
The Report of the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (“the Richard Report”) was published in March 2004.
Cm 6582
See as the first example of this approach, NHS Redress Bill 2005, clause17.