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Welsh law is the primary and secondary legislation generated by the National Assembly for Wales, according to devolved authority granted in the Government of Wales Act 2006. Each piece of Welsh legislation is known as an Act of the Assembly. The first Assembly legislation to be officially proposed was called the NHS Redress (Wales) Measure 2008. These powers have been effective since May 2007. It is the first time in almost 500 years that Wales has had its own laws, since Cyfraith Hywel, a version of Celtic law, was abolished and replaced by English law through the Laws in Wales Acts, passed between 1535 and 1542 by King Henry VIII.
Legislative competence of the National Assembly for Wales
Both the Government of Wales Act 1998 and the Government of Wales Act 2006 set out areas of devolved responsibility for the National Assembly for Wales (commonly known as the Welsh Assembly). The 2006 granted the Assembly legislative competence to make laws (known as Assembly Measures) in clearly defined "matters". In order to draft laws that are part of its area of responsibility, but where the powers of legislative competence have not been devolved to it, the Welsh Assembly could request these powers using a Legislative Competency Order or they can receive the transfer of power and the right to make laws through parliamentary bills.
Each Order in Council for an area of legislation must be approved by the Secretary of State for Wales, both Houses of Parliament, and the Queen in Council in order for the Assembly to legislate in that area. Once the Queen has approved the Order, the new area of legislative competence is added to Schedule 5, Part 1 of the Government of Wales Act 2006. There is a Counsel General for Wales who oversees the approval and creation of these laws, and gives advice to the Welsh Government.
The 2006 Act also included provisions which would allow for a referendum to be held on whether to grant the Assembly legislative competence to pass primary legislation to be known as "Acts of the Assembly" in all matters within 20 subject areas without the need for further Legislative Competency Orders. A referendum under these provisions was held in March 2011 and resulted in a vote in favour of granting the assembly the competence to pass the Acts of the Assembly. Therefore, the Assembly now has the legislative competence to pass Acts of the Assembly in all 20 devolved subjects.
Following the devolution of legislative competence to the Welsh Assembly in some area of responsibility, it is unlikely that the UK Parliament would draw up legislation in that area without a Legislative Consent Motion being passed by the Welsh Assembly to allow them to do so (Assembly Standing Order 26). This is done to preserve the autonomy of the Welsh Assembly, and to prevent legislative confusion.
Areas to legislate: The devolved areas
These areas are "subjects" where the National Assembly for Wales can make legislation in the form of an Act of the Assembly.
- Agriculture, fisheries, forestry and rural development
- Ancient monuments and historic buildings
- Economic development
- Education and training
- Fire and rescue services and promotion of fire safety
- Health and health services
- Highways and transport
- Local government
- Public administration
- National Assembly for Wales
- Social welfare
- Sport and recreation
- Town and country planning
- Water and flood defence
- Welsh language
The Assembly can also legislate in areas that affect only the Assembly itself, which is why the National Assembly for Wales field is added.
Referendum to make Acts of the Assembly
The Welsh Assembly was able to make only Assembly Measures, but the Assembly was given the option to call for a referendum, with added approval from the UK Parliament, to make Acts of the Assembly. This would not change much of the Assembly Measures system, and if the referendum should win, the Assembly Measures passed before that date would still be in force. It was considered that Assembly Measures are a build on to the Acts of the Assembly if the Assembly would these powers in future.
The referendum was held on 3 March 2011. The majority of the participants voted 'Yes' to the question "Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?".
Even so, future Welsh order in council laws may face veto from the UK Parliament, but the Assembly still is able to make laws in areas already devolved because once the referendum is approved, there are powers that are already in the government of Wales Act 2006 to make laws already approved by parliament when the act was passed. The Assembly can still request to make laws in areas using the Order in Council system but if the UK Parliament wants to legislate in a devolved area, it will require a motion to be passed by the Welsh Assembly, similar to the way the Scottish Parliament work at present. The power to make Acts of the Assembly are called Subjects, which are listed in schedule 7, part 1 of the Government of Wales Act 2006.
English law and contemporary Welsh law
English law still apply to Wales under the present devolution settlement. Contemporary Welsh law will govern the local aspects of Welsh life whilst English law will govern the more generic aspects. Because these laws are derived from UK Acts of Parliament, some people consider this new system of laws to be another branch of English law. Unlike Scotland, for example, which has its own criminal and civil justice system, Wales still has a unified justice system with England. The 'One Wales' Labour/Plaid Cymru deal also has an area for devolution of a Criminal and Youth Justice System to this new legal system.
It is important to note, that English law still applies in Wales, but it will also be important to say that some laws in England, that are devolved in Wales, may not apply in Wales. It is also possible to say that once the Assembly has legislative competency in an area to legislate using Acts of the Assembly, the National Assembly could lead Wales down a different route compared to English law. It's possible to say that there could be some acts that would be illegal in Wales, but not illegal in England and Scotland. For example, using an electric shock collar on a cat or dog in Wales is illegal, but it's still legal in the rest of the UK.
There are Acts of the United Kingdom Parliament that are classed as "Wales-only laws". Each Act contains provisions for the Welsh Assembly to make subordinate legislation on. Sometimes such Acts can also confer power to the National Assembly for Wales. An example of such a Wales-only law is the Transport (Wales) Act 2006. This Act allows the National Assembly to make Orders to enforce the provisions in the Act. The Act does not confer power to the Assembly to make Assembly Measures.
A major difference is also the use of the Welsh language, as laws concerning it apply in Wales and not in England. The Welsh Language Act 1993 is an Act of the Parliament of the United Kingdom, which put the Welsh language on an equal footing with the English language in Wales with regard to the public sector. Welsh can also be spoken in Welsh courts.
Wales as a jurisdiction
As there is no criminal law within contemporary Welsh law, Wales cannot be considered a fourth jurisdiction of the United Kingdom. This is because the judiciary and the courts follow England and Wales law, which is made by the United Kingdom Parliament, and is not specific to Wales. Although Welsh law is recognised as separate in operation, this is not sufficient for Wales to constitute a separate legal jurisdiction. If the One Wales agreement is successful, before 2011, this may change, as the agreement calls for a review of criminal justice matters in Wales, and the question of whether it should be devolved to Wales; currently, however, there is no devolution of justice to the Assembly.
- Schedule 5 of the Government of Wales Act 2006
- Royal Commission on the Constitution (United Kingdom)
- National Assembly for Wales
- Welsh Government
- English Law
- Northern Ireland law
- Scots Law
- St David's Day Agreement
- STANDING ORDER 26 - Consent in relation to UK Parliament Bills
- BBC NEWS | Wales | Wales politics | First Welsh law's royal approval
- See Page 29
- Transport (Wales) Act 2006
- One Wales agreement