What is a Section 109 Order?

11 November 2014

Article written by Alys Thomas, National Assembly for Wales Research Service

GoWA

Section 109 of the Government of Wales Act 2006 (“the Act”) allows the legislative competence of the National Assembly for Wales to be changed by amending Schedule 7 to the Act.

Schedule 7 to the Government of Wales Act 2006 defines the scope of the Assembly’s legislative competence to make Assembly Acts, within areas where the Welsh Ministers exercise executive functions. Schedule 7 categorises the existing areas of policy responsibility devolved to the Welsh Government into 20 broad areas.

Orders in Council made under Section 109 of the Act may modify the legislative competence of the Assembly by amending Schedule 7. These amendments could:

  • increase the legislative competence of the Assembly by inserting additional subjects into the Schedule on which the Assembly can legislate;
  • restrict the Assembly’s competence by inserting further exceptions or restrictions into the Schedule;
  • or clarify the Assembly’s competence by modifying the descriptions already in the Schedule.

A Section 109 Order must be approved by both Houses of Parliament and by the Assembly itself.

The UK Government and the Welsh Government may agree to modify the legislative competence of the Assembly by including provisions in parliamentary Acts. These provisions do the same job as Section 109 Orders by amending Schedule 7 to the Act, and could be used to amend the Assembly’s legislative competence. The UK Government and the Welsh Government have agreed that the Welsh Ministers should seek the consent of the Assembly when such provisions are included in Bills, though an Legislative Competence Motion. Devolution Guidance Note 17, which provides guidance for UK civil servants, advises Whitehall Departments to “presume in favour of a Section 109 Order whenever feasible, rather than provisions in parliamentary Acts, when the Assembly’s legislative competence is to be modified”.

On 5 November 2014 the Welsh Government laid The Government Of Wales Act 2006 (Amendment) Order 2015. The Order seeks to amend Schedule 7 to the Act, in relation to legislative competence on sustainable development. This Order itself does not make any other change, but would allow the Assembly to amend section 79 (which makes provision for a sustainable development scheme) of the Act should it choose to do so. The Welsh Government is intending to bring forward such an amendment to section 79 during the course of the Well-being of Future Generations (Wales) Bill currently before the Assembly.

The first 109 Order to be made was National Assembly for Wales (Legislative Competence) (Amendment of Schedule 7 to the Government of Wales Act 2006) Order 2007 . As it was the first Order to be laid before Parliament, in accordance with section 109(4)(b), it was not required to be laid before and approved by a resolution of the Assembly. However, all subsequent Orders do require the approval of the Assembly. The 2007 Order amended the subjects and exceptions set out in Part 1 of Schedule 7.

A further Order was made in 2010, The National Assembly for Wales (Legislative Competence) (Amendment of Schedule 7 to the Government of Wales Act 2006) Order 2010. This amended Schedule 7 in order to reflect legislative competence which had been conferred on the Assembly under the arrangements that existed between 2007 and 2010, and certain exceptions and restrictions which had been applied to that competence, since Schedule 7 was last updated in 2007. The Order also made amendments clarifying some subjects and exceptions.