UK Parliament / Open data

Wales Bill

It is a pleasure to welcome you to the Chair, Mr Hoyle, and to respond to Members’ comments about the amendments. I echo what was said about the Welsh football team. The Prime Minister has already congratulated them, and it is a pleasure for me to do so as Secretary of State for Wales.

The amendments go to the heart of the new devolution settlement for Wales that the Bill puts in place. Clause 3 and schedules 1 and 2 insert new section 108A and new schedules 7A and 7B into the Government of Wales Act 2006 to provide for a reserved powers model of Welsh devolution. The Bill devolves significant new powers and will enable the Welsh Government and Assembly Members to legislate on the things that really matter to Wales.

Clause 3 sets out the parameters of the legislative competence of the Assembly under the reserved powers model. An Act of the Assembly will be outside competence—it therefore will not be law—if it falls foul of any one of the five tests set out in paragraphs (a) to (e) of new section 108A(2). I will first say something about how it is intended that each of those tests will work before turning to the proposed amendments to the clause.

The five tests are separate and independent assessments, each of which must be satisfied for a provision to be within competence. The first test is that an Assembly Act provision cannot form part of a legal jurisdiction other than that of England and Wales. We debated many aspects of that during our first day in Committee.

Test 2 is that an Assembly Act provision cannot apply

“otherwise than in relation to Wales”.

There is an exception to that prohibition, however, because new section 108A(3) states that an Assembly Act provision can apply beyond Wales, but only when it is ancillary to a provision that is within competence and if there is no greater effect beyond Wales than is necessary to give effect to that provision. It is worth noting that we have used the word “ancillary” as shorthand for the Assembly’s existing enforcement and consequential-type powers under section 108(5) of the Government of Wales Act 2006.

6.45 pm

In the context of the draft Wales Bill, there was much debate about the words “necessity test”. Let me be clear that “necessary” does not mean that there would only ever be one option that would satisfy that test. There could be a number of different options to achieve the same policy objective, all of which could satisfy the requirement not to have effects beyond Wales that are more than necessary.

Test 3 is that an Assembly Act provision must not relate to a reserved matter listed in proposed new schedule 7A, which we will come to later. The question of whether an Assembly Act provision relates to a reserved matter is to be interpreted by reference to the purpose of the provision, having regard to, among other things, the effect in all the circumstances set out in section 108A(6). The test is the same as that which currently applies in the context of the conferred powers model. It has become known as the “purpose test”.

Let me explain the technical issues that I have highlighted. Although the policy documents that give rise to an Assembly Bill may be relevant in determining its purpose, the essential question is what the Bill provision is seeking to achieve and what effect the provision has in legal, practical and policy terms. In other words, it will not be enough for the Welsh Government simply to assert the purpose of the provision. Why it is being enacted and what it actually does—that is what is really relevant in determining its purpose and, ultimately, whether an Assembly Act provision is within the Assembly’s legislative competence under test 3.

Test 4 is that an Assembly Act provision must not breach any of the restrictions in new schedule 7B, which I shall say more about in a moment. Finally, test 5 is the requirement that the Assembly Act provision must comply with the European convention on human rights and EU law. Those five tests represent clear, proportionate and

reasonably parameters on the Assembly’s legislative competence, and it is important that I have put them on the record.

Type
Proceeding contribution
Reference
613 cc85-7 
Session
2016-17
Chamber / Committee
House of Commons chamber
Legislation
Wales Bill 2016-17
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