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Brief Overview - Government of Wales Act 2006

The Government of Wales Act 2006 (the 2006 Act) has major implications for the future governance of Wales. It changes, in a number of significant respects, the original devolution settlement for Wales laid down in the Government of Wales Act 1998 (the 1998 Act).

Separation

The 1998 Act established the National Assembly for Wales as a single corporate body, with secondary legislative powers and 60 Assembly Members.  The new arrangements provided for in the Government of Wales Act 2006 (external linkl) created a formal legal separation between:

  1. the National Assembly for Wales, which is the legislature comprising the 60 Assembly members, and
  2. the Welsh Assembly Government, the executive, which comprises the First Minister, Welsh Ministers, Deputy Welsh Ministers and the Counsel General.

This separation between legislature and executive took effect once the First Minister was appointed by Her Majesty the Queen following the Assembly election on 3 May 2007.

The role of the executive is to make decisions; develop and implement policy; exercise executive functions and make statutory instruments.  The 60 Assembly Members in the National Assembly scrutinise the Assembly Government's decisions and policies; hold Ministers to account; approve budgets for the Welsh Assembly Government's programmes; and have the power to enact Assembly Measures on certain matters.  Assembly Measures can go further than the subordinate legislation which the Assembly had the power to make under the 1998 Act.

The Assembly's functions, including those of making subordinate legislation, transferred, in the main, to the Welsh Ministers upon separation.  The result mirrors much more closely the relationship between the UK Government and Westminster and that between the Scottish Executive and the Scottish Parliament.

A third body was established under the 2006 Act from May 2007, which is called the National Assembly for Wales Commission.  It is responsible for employing the staff supporting the National Assembly for Wales and for holding property, entering into contracts and providing support services on its behalf.

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Welsh Ministers

The 2006 Act makes new provision for the appointment of the Welsh Ministers.  The First Minister is nominated by the Assembly and then appointed by Her Majesty the Queen.  The First Minister subsequently appoints the Welsh Ministers and the Deputy Welsh Ministers, with the approval of Her Majesty.

The Act created a new post of Counsel General, who is the principal source of legal advice to the Welsh Assembly Government.  The Counsel General is appointed by the Queen, on the nomination of the First Minister, whose recommendation has to be agreed by the National Assembly.   The Counsel General can be, but does not have to be, an Assembly Member.

The Act permits a maximum of 12 Welsh Ministers, which includes Deputy Welsh Ministers, but excludes the First Minister and the Counsel General.  Accordingly, the maximum size of the Welsh Assembly Government is 14.

Following separation, the Welsh Ministers exercise functions in their own right and further transfers of executive functions from the UK Government can be made directly to the Welsh Ministers (with their consent) by an Order in Council approved by Parliament.

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Electoral Changes

The 2006 Act has required each candidate standing in an Assembly election to choose to either stand as a constituency representative or on a regional list.  This provision has been in effect since May 2007. 

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Measures of the National Assembly for Wales

The Assembly is able to seek legislative competence from the UK Parliament to make a new category of legislation, called Measures of the National Assembly for Wales, or Assembly Measures.  Legislative competence may be sought either through clauses in Parliamentary Bills or through a new Order in Council procedure provided for in the Government of Wales Act 2006.

Clauses in Parliamentary Bills conferring legislative competence on the Assembly are dealt with by Parliament in the same way as they consider other clauses in a Bill; i.e. both Houses will have the opportunity to propose amendments to such clauses, and they will have the final say on whether the clauses should be included in the final versions of Bills.  This means that it will be for Parliament finally to decide exactly how much additional legislative competence to confer on the Assembly by any particular Bill.

An Order in Council proposed by the Welsh Assembly Government will in practice require the following:

  1. agreement with Whitehall regarding the scope of the legislative competence sought;
  2. pre-legislative scrutiny of a proposed order by relevant committees of the Assembly and Parliament
  3. the approval of the final draft by the Assembly; and
  4. the approval of both Houses of Parliament.

The scope of the legislative competence to make Measures which is agreed in each Order in Council or Parliamentary Bill clause is known as a "Matter" (which can be described as a topic) and will have to relate to one of the twenty Fields (or subject areas) of devolved government listed in Schedule 5 to the 2006 Act.  For example, legislative competence has been granted to make Measures relating to the Matter of "special educational needs" in the Field of education and training.  The precise wording of the Matter, including any exceptions and reservations, depends on the scope of the power to make Measures which the Welsh Assembly Government wants to achieve and has agreed with the UK Government.

Once the Assembly has been given the legislative competence to make Measures in relation to a specified Matter, that competence has enduring effect and the competence will be added to the Matters under the relevant devolved Field. Over time, the Assembly's competence to make Measures in devolved Fields of government will therefore increase. It is then up to the Welsh Assembly Government to develop proposed Measures relating to the Matter and bring them before the National Assembly for Wales for consideration. The Assembly scrutinises proposed Assembly Measures without further recourse to Parliament, just as Parliament scrutinises Bills.  Once the Assembly has passed a proposed Measure it will take legal effect after being approved by the Queen in Council  

As well as the Welsh Assembly Government, the Assembly or Assembly committees or "backbench" Assembly members are able to propose Orders in Council to add to the Assembly's legislative competence.  They are also able to propose Assembly Measures.

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Finance

The 2006 Act established the Welsh Consolidated Fund on 1 April 2007, which is a neutral "pot" where the money voted by Parliament to Wales is held.

The Assembly is responsible for approving budget motions and supplementary budget motions proposed by the Welsh Ministers.  The Auditor General for Wales authorises payments out of the Welsh Consolidated Fund to the Welsh Ministers if the expenditure has been approved by the Assembly in this way. The separate expenditure of each of the Assembly Commission, the Auditor General for Wales and the Public Services Ombudsman for Wales also comes out of the Welsh Consolidated Fund.

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Acts of the National Assembly for Wales

The 2006 Act also contains provisions for the Assembly to have the power to make Acts of the National Assembly for Wales in the devolved fields of government.  These provisions in the 2006 Act can only be triggered by:

  1. two-thirds of the 60 Assembly members voting in favour of holding a referendum and on a draft referendum order;
  2. the Secretary of State undertaking such consultation as he considers appropriate and agreeing to lay the draft referendum order before Parliament; and
  3. both Houses of Parliament voting in favour of holding a referendum.

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