(This note is not part of the Order)
Section 17 of the NHS Redress Act 2006 (c.44) and sections 178 and 179 of the Education and Inspections Act 2006 (c.40) conferred framework powers on the National Assembly for Wales constituted by the Government of Wales Act 1998 (c.38) (“the current Assembly”).
Those provisions were founded on the principles set out in the Wales Office’s White Paper: Better Governance for Wales (Cm 6582), which was presented to Parliament on 15th June 2005. The White Paper contained the Government’s proposals for developing the devolution settlement in Wales. It confirmed the Government’s intention, in the first phase of that development, to draft primary legislation relating to Wales “to delegate to the Assembly the maximum discretion in making its own provisions using secondary legislative powers” (see paragraph 1.24).
Section 17 of the NHS Redress Act 2006 conferred on the current Assembly a wide power to make regulations for the purpose of enabling redress to be provided (otherwise than by civil proceedings) in respect of personal injury or loss arising in connection with the diagnosis of illness, or the care or treatment of any patient as part of the health service in Wales.
Sections 178 and 179 of the Education and Inspections Act 2006 conferred on the current Assembly a wide power to make regulations applying to Wales in respect of: categories of maintained school; establishment, discontinuance and alteration of maintained schools; school admissions; the curriculum in maintained schools; attendance, discipline and exclusion; entitlement to education and training, and services to encourage, support or assist young people with regard to education and training; travel of persons receiving education and training; and food and drink provided for children.
Those provisions contained limitations and restrictions that are appropriate in the context of the devolution settlement applying to the current Assembly.
The purpose of this Order is, in pursuance of paragraph 31(2) and (4) of Schedule 11 to the Government of Wales Act 2006 (c.32) (“GOWA 2006”), to make provision, by amending Schedule 5 to that Act, so that the National Assembly for Wales constituted by that Act (“the new Assembly”) will be able to pass Assembly Measures that are about any of the matters covered by the framework powers.
Part 3 of the GOWA 2006 sets out provisions about the legislative competence of the new Assembly to pass Assembly Measures. Schedule 5 to that Act lists the fields in which the Assembly may be granted such legislative competence by the insertion of matters. Assembly Measures are enacted by being passed by the new Assembly and approved by Her Majesty in Council.
Article 2 of the Order is necessary because the purpose of the Order under paragraph 31(2) of Schedule 11 to the GOWA 2006 is to prevent the subordinate legislation functions in question being transferred to the Welsh Ministers under paragraph 30 of that Schedule and, instead, to confer power on the Assembly constituted by GOWA 2006 to pass Measures in relation to those matters. Articles 2, 3 and 4 achieve that purpose and article 5 then repeals the relevant provisions in the NHS Redress Act 2006 and the Education and Inspections Act 2006.