Section 94: Legislative competence
330.The purpose of this section and Schedule 5 is to set out the extent of the Assembly’s power to pass Measures (the Assembly’s “legislative competence”). Its legislative competence may be altered by Order in Council under section 95, amending Schedule 5.
331.Provided it complies with the limits set by this section and by Schedule 5, an Assembly Measure can have the same effect as an Act of the UK Parliament. In other words it can, for example, modify existing Acts of Parliament or other enactments and it can make new provision not covered by existing statutes.
332.Subsection (2) makes it clear that if an Assembly Measure contains a provision which is outside the Assembly’s legislative competence (that is, it goes beyond the limits set by this section and by Schedule 5, as amended from time to time), that provision has no legal effect. However, the whole Measure is not rendered invalid, provided that the provision which is outside legislative competence can be severed from the Measure.
333.Subsections (3) to (6) set out the rules with which a provision in a Measure must comply in order to be within the Assembly’s legislative competence. It will only be within competence if it satisfies the criteria in either 94(4) or 94(5), and it also complies with 94(6).
334.In order to satisfy the criteria in section 94(4):
the provision in question must relate to one of the “matters” specified in Part 1 of Schedule 5; and
the provision in question must apply only in relation to Wales, and it must not confer, impose, change or remove (or give anyone else the power to confer, impose, change or remove) functions exercisable other than in relation to Wales.
335.Part 1 of Schedule 5 contains a list of fields, but only one of them (“National Assembly for Wales”) has any matters specified in relation to it, and those relate to the internal arrangements of the Assembly. Orders in Council under section 95 will have the effect of adding matters under different field headings, thereby enabling the criteria referred to in (a) above to be satisfied over wider policy areas.
336.In order to satisfy the criteria in section 94(5):
the provision in question must be one which enables a provision of an Assembly Measure (i.e. one which itself satisfies the criteria in subsection (4)) to be enforced or which is otherwise appropriate for making such a provision effective; or
the provision in question must be one which is incidental to or consequential on such a provision.
337.So if a provision satisfies the criteria in subsection (5) it is not subject to the limitation in subsection (4) that a provision in a Measure may only relate to Wales. This, for example, will enable the Assembly to include in Measures necessary consequential amendments to Acts of Parliament to make it clear where they no longer apply in relation to Wales or to include provisions enabling the courts of England and Wales to enforce Assembly Measures effectively.
338.In order to comply with section 94(6):
the provision in question must comply with restrictions on the Assembly’s legislative competence which are set out in Part 2 of Schedule 5 to the Act. There are exceptions from these restrictions, which are set out in Part 3 of Schedule 5; and
the provision in question may not “extend” to any jurisdiction other than England and Wales. (England and Wales is a single legal jurisdiction and Assembly Measures will form part of the law of that jurisdiction. Although they will only, with limited exceptions, apply to Wales, they will be able to be enforced by the courts of England and Wales generally. They will not, however, be able to make provision forming part of the law of other legal jurisdictions such as Scotland); and
the provision in question must not be incompatible with the European Convention on Human Rights or European Community law.
339.Subsection (7) lays down the test to be used to decide whether a particular provision in an Assembly Measure relates to a matter or matters listed in Part 1 of Schedule 5, and therefore whether it meets the criteria in 94(4)(a). The correct approach will be to consider the purpose of the provision having regard to its effect in all the circumstances.
