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07 May 2019
Much has changed in Wales in the twenty years since the first National Assembly for Wales was elected in May 1999. This is the final in a series of articles that attempts to describe some of that change. It has been prepared by Senedd Research as part of the Assembly’s activity to mark twenty years of devolution.
The Assembly is marking 20 years since it opened its doors in 1999, following a yes vote in the 1997 referendum and there have been dramatic changes to the Assembly’s powers, responsibilities and structures This article gives a brief overview of the first five Assemblies to date, and how the institution and its powers have changed over time.
The First Assembly (1999-2003)
The Assembly was set up as a ‘corporate body’ under the Government of Wales Act 1998 which meant that unlike most legislatures, the executive part (which later became the ‘Welsh Government’) and the law-making part (the ‘Assembly’) were a single organisation. It could not pass its own Acts. To begin with it could only make Orders and Regulations, known as secondary legislation, in areas where powers were transferred from UK Ministers through Transfer of Functions Orders.
Members of the Cabinet were initially known as ‘Assembly Secretaries’ but became ‘Ministers’ in 2000 following the appointment of Rhodri Morgan as the new First Minister. The Assembly also agreed changes to its Standing Orders that year to create a distinct ‘office of the Presiding Officer’ which was the first step in separating out the functions of the legislative part of the Assembly from the executive part. The term ‘Welsh Assembly Government’ was used for the first time in November 2001. Further moves towards separation, and important enhancements to the role of Assembly’s committees so they could carry out more scrutiny of the government came from recommendations made in the Assembly Review of Procedure published in 2002.
The Second Assembly (2003-2007)
March 2004 saw the publication of the report of the Richard Commission on the powers and electoral arrangements of the Assembly. Two of its key recommendations were that:
- the Assembly should be able to make its own laws; and
- the Assembly and the ‘Welsh Assembly Government’ should be separated into two legally separate organisations.
In June 2005 the UK Government published a White Paper, Better Governance forWales setting out how the UK Government intended to fulfil these policy commitments. At this time, the Assembly was operating as two separate organisations as far as legally possible, in advance of the new legislation passing through the UK Parliament.
The Assembly moved into its new home, the Senedd building in March 2006.
The Third Assembly (2007-2011)
The Government of Wales Act 2006 enacted the key recommendations in ‘Better Governance for Wales’. From the start of the third Assembly it created a formal, legal separation between:
- the Legislative branch: the ‘National Assembly for Wales’, made up of the 60 Assembly Members, and
- the Executive branch: still known at that time as the ‘Welsh Assembly Government’, which was made up of the First Minister, Welsh Ministers, Deputy Welsh Ministers and the Counsel General.
The 2006 Act allowed the Assembly, for the first time, to seek the power to make laws from the UK Parliament. The laws were known as ‘Measures of the National Assembly for Wales’ (Assembly Measures). The power to make such laws (‘legislative competence’) was granted through clauses in Westminster Bills or through Legislative Competence Orders. These had to be approved by the UK Parliament and by the Assembly.
The first Order transferring law-making powers in the area of special educational needs provision received Royal Approval in April 2008 and led to a Measure giving children the right to appeal to the Special Educational Needs Tribunal for Wales in 2009. The first piece of Assembly-made primary legislation, on compensation payments for NHS patients in Wales, became law in July 2008.
The 2006 Act also contained an expanded list of subject matters where law-making powers were devolved to the Assembly and this list was continually added to during the next ten years whilst the relevant part of the 2006 Act was in force.
The 2006 Act also allowed the Assembly to move to making its own laws without the permission of the UK Parliament, but only after an affirmative vote in a referendum.
This referendum, held on 3 March 2011, produced a yes vote with 63.5 per cent of those voting in favour of bringing into force these full law-making powers.
The Fourth Assembly (2011-2016)
As a result of the referendum the Assembly was now able to pass its own Acts without the permission of the UK Parliament. From 2011 the ‘Welsh Assembly Government’ was renamed as the ‘Welsh Government’.
The first piece of legislation passed by the Assembly was the Local Government Byelaws (Wales) Bill in July 2012. However this Bill and two others were referred to the Supreme Court during the Fourth Assembly. The Byelaws Bill and the Agriculture Sector (Wales) Bill were referred by the Attorney-General who did not believe that the Assembly had the powers to make them. The Supreme Court disagreed in both cases.
In a third case (The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill) the Supreme Court did not agree with the Assembly that it had the powers.
After the 2010 UK General Election, the UK Government set up the Silk Commission to look at further devolution to Wales. Firstly it considered the financial powers of the Assembly and recommended that the Assembly be given powers over some taxes. The Wales Act 2014 turned these recommendations into law and the powers were devolved to the Assembly.
In its second stage, the Silk Commission considered what further powers could be given to the Assembly. In the light of the repeated referral of Assembly Bills to the Supreme Court some people were beginning to question the model of devolution in Wales. It was a ‘conferred powers’ model where it could only make laws about the subject areas listed in the Government of Wales Act 2006. Many thought a new Act, which listed what was not devolved (i.e. areas reserved to Westminster) similar to the Scottish settlement and the Scotland Act 1998, would be clearer.
When the Commission reported in March 2014 a key recommendation was a move to a ‘reserved powers’ model, in which powers reserved to the UK Government are listed, with all others being devolved.
Following the Scottish Independence Referendum in September 2014, the UK Government announced the St David’s Process to complement a review of constitutional developments in Scotland. The Secretary of State for Wales held meetings with the Welsh leaders of the Westminster parties using the Silk Report as a basis for discussion. Powers for a Purpose, published just ahead of St David’s Day 2015, set out the UK Government’s plans for further devolution and included a recommendation that the Assembly should have powers to change the age at which people can vote. There was also political consensus that the Assembly should be formally recognised as a permanent institution, enshrined in legislation, and have the power to change its name if it wishes.
The UK Government also announced that it would bring forward a Bill in the UK Parliament that would give Wales a ‘reserved powers’ model.
The Fifth Assembly (2016-2021)
The Wales Act 2017 implemented the proposals in ‘Powers for a Purpose’. As a result, the amended 2006 Act now lists all subject areas (eg: defence) where the Assembly cannot legislate. The new settlement commenced on 1 April 2018 and has resulted in new Assembly legislative competence powers to make laws in a variety of new policy areas such as taxi regulation, bus service registration and fracking.
The 2017 Act also included powers for the Assembly to change its name and to alter who can vote in an Assembly election. The Senedd and Elections (Wales) Bill is currently being considered by the Assembly. The Bill from the Assembly Commission will rename the Assembly the ‘Senedd’ which will, it is claimed, better reflect the institution’s status as a parliament and will also deliver reforms to the Assembly’s electoral and operational arrangements, including lowering the minimum voting age to 16.The main provisions of the Bill are based on recommendations made by the Expert Panel on Assembly Electoral Reform, and were subject to consultation in 2018.
Should the Bill pass, it is intended that the name change will take legal effect in May 2020 to ensure that the public are familiar with the new name in advance of the next Assembly election in 2021. The Bill will make it possible for 16 and 17 year olds to vote in Assembly elections on or after 5 April 2021.
Brexit is having an impact on the Assembly’s powers. The European Union (Withdrawal) Act 2018, which converts EU law into domestic law, enables UK Ministers to make regulations placing restrictions on the ability of the Assembly to pass any legislation which is incompatible with the body of EU law retained by the Act. However any such regulations will need a consent decision process in the Assembly. The Act also required changes to be made to Assembly procedures.
So the Assembly has evolved considerably over the last 20 years from a single body only able to approve secondary legislation into a permanent legislature with some tax-raising and full law-making powers in key policy areas such as health, education, transport and the environment. Further change is already on the cards with a new name and a lowering of the voting age.
Brexit will also bring changes to the Welsh devolution settlement. EU legislation will no longer provide the framework within which Assembly Acts are made. Instead, many of the powers currently exercised by EU institutions will reside with the devolved institutions after Brexit and the Assembly will be able to pass its own legislation in areas that were previously the responsibility of the EU.
However, it has been agreed between the governments of the UK that some policy areas will need a UK-wide approach to replace the framework provided by EU law to ensure consistency across the UK internal market. The Assembly will have an important role to play in the scrutiny of these new UK-wide frameworks.