devolution in wales

Following the Government White paper, "A Voice for Wales" (1997) and a subsequent referendum accepting the proposals for the creation of an Assembly, the Government of Wales Act 1998 established the first National Assembly for Wales. Unlike the devolution arrangements for Scotland and Northern Ireland, the Act did not provide for a separation of the legislature from the executive. The Assembly assumed the statutory powers and duties of the Secretary of State for Wales. In practice the Assembly delegated the major part of its executive powers to the Assembly Ministers (and administratively described as Welsh Assembly Government). The Assembly also assumed a large number of order-making powers by means of secondary legislation but had no power to make any primary legislation.

In July 2002, a Commission was appointed to review the operation of the devolution arrangements. It recommended that the existing Assembly should be replaced by two separate bodies - an executive and a legislature and that by 2011 the Assembly should be able to make primary legislation for Wales.

The White Paper, "Better Governance for Wales" (2005) set out proposals for legislation to effect a formal separation between the executive and legislative branches of the Assembly and to enhance the legislative powers of the Assembly as well as reviewing the electoral arrangements.

In response therefore, the Government of Wales Act 2006 establishes a second devolution settlement for Wales which is legally complex. The Act envisages a third and subsequent settlement in enabling a Referendum to take place in the future and without further recourse to Parliament which would secure the granting of full primary law making powers to the Assembly as has already occurred in Scotland. In the meantime this interim settlement perhaps represents "a half way house". Public bodies and private organisations conducting their business in Wales may well need legal help in establishing what the difference may be between English and Wales law and how the process of securing further legislative competence for the Assembly works.

Part 4 of the Government of Wales Act provides for a Referendum to be held to determine whether the "Assembly Act " provisions at sections 107 and 108 and 110 to 115 should come into force. These provisions would fully enable Wales to make its own laws by means of an Act of the Assembly and to enjoy full powers to make its own primary legislation in the same was as the Scottish Parliament and without further reference to Westminster. This would end the "half way house" arrangement. The One Wales coalition agreement between Labour and Plaid Cymru agreed the appointment of an All Wales Convention to prepare Wales for such a Referendum to be held. On 23rd October 2007, Rhodri Morgan and Ieuan Wyn Jones announced the appointment of Sir Emyr Jones Parry to head the Convention although its precise terms of reference remain to be determined by the coalition parties. However a key element of the One Wales agreement is that such a referendum will take place before the end of the current Assembly term in 2011. Sir Emyr Jones Parry is the former British Ambassador to the United Nations.

A key element of the current settlement is that the England and Wales jurisdiction of the Courts remains in place. Scotland and Ireland have always had some separate and distinct difference in their legal systems. This means that from May 2007 a litigant will be able to argue a point of Wales law on a Welsh issue in an English Court and vice versa. At Morgan Cole we can help you to be confident that you are relying on the correct law on a Welsh devolved issue.