Making laws in Wales: from executive devolution to a reserved powers model

Published 28/06/2024   |   Reading Time minutes

The way laws are made in Wales has changed more in the last 25 years than in any other part of the United Kingdom.

From the Assembly’s start as an institution making only secondary legislation, the Senedd has evolved into a fully-fledged legislature, passing primary legislation and setting Welsh taxes.

This article explores the different periods of law-making in the Senedd’s history and how it has developed over the last quarter of a century.

1999-2007: Executive devolution

The National Assembly for Wales was initially established as an executive body, with no division between government and legislature. It was able to make secondary legislation with powers granted to it under Acts of the UK Parliament.

Secondary (or subordinate) legislation is law created by Ministers (or other bodies) under powers given to them by a piece of primary legislation (such as an Act). The initial powers of the Assembly to make legislation were set out in a series of Transfer of Functions Orders (moving functions from UK Ministers) and in subsequent Acts passed by the UK Parliament.

This type of devolution limited the ability of the Assembly to make policy decisions, as it would need to first identify a relevant power. However, this did not stop the Assembly from making some significant changes to Welsh public policy in the period of 1999-2007.

The National Curriculum (Key Stage 2 Assessment Arrangements) (Wales) Order 2004 changed the way school pupils in their last year at primary school were assessed. It scrapped SATS tests, instead allowing teachers to assess pupils’ abilities.

The Assembly also passed the Homeless Persons (Priority Need) (Wales) Order 2001. The Order broadened eligibility for priority housing to those aged 16 and 17, persons fleeing domestic violence and persons homeless after leaving the armed forces.

2007-18: Primary law-making powers

Law-making in Wales was transformed by the Government of Wales Act 2006, which provided for the Assembly and the Welsh Government to be separated in law (the Assembly had resolved for a de facto separation in 2002). A form of primary law-making power, known as Assembly Measures, were introduced for the first time.

The Assembly could pass Measures in 20 policy areas, called ‘fields’. Fields were divided into ‘matters’. Each ‘matter’ was added on a piecemeal basis. This was done by making a Legislative Competence Order (LCO) which had to be passed by the Assembly and both Houses of Parliament.

The NHS Redress (Wales) Measure 2008 was the first piece of primary legislation to be passed by the Assembly. The Measure gave powers to the Welsh Ministers to require the NHS to consider settling lower value clinical negligence claims without recourse to formal legal proceedings.

Other Measures passed by the Assembly include the Welsh Language (Wales) Measure 2011, which established the Welsh Language Commissioner and enabled the development of Welsh Language Standards; the Rights of Children and Young Persons (Wales) Measure 2011, which incorporated the UN Convention on the Rights of the Child into Welsh law; and Measures to establish the Assembly’s Remuneration Board and Standards Commissioner.

In 2011, following a referendum, the Assembly gained full primary law-making powers across 20 subjects. The LCO procedure disappeared. The Assembly could now pass Assembly Bills without any role for the UK Parliament during the legislative process. At the end of the process, the Bill is given Royal Assent by the monarch and becomes an Act.

With these new powers, the Assembly got to work on some of the most significant pieces of legislation passed during devolution. 29 Acts were passed between 2011 and 2016, including:

The National Assembly for Wales (Official Languages) Act 2012 was the first to receive Royal Assent.

The Human Transplantation (Wales) Act 2013 introduced an opt-out system of organ and tissue donation in Wales.

The Well-being of Future Generations (Wales) Act 2015 established the Future Generations Commissioner for Wales and placed a duty on public authorities to ensure the needs of the present population are met without compromising the needs of future generations.

The Tax Collection and Management (Wales) Act 2016 set out the legal framework necessary for the collection and management of devolved taxes in Wales.

2018-now: A reserved powers model of devolution

The most recent reform to the legislative powers of the Senedd occurred in April 2018. Up until that point, the Senedd operated on a conferred powers model. This meant the Senedd could only legislate in defined areas. Anything not listed as a “subject” was not within the Senedd’s “legislative competence” (its remit for legislating). 

In April 2018, the model was changed to a reserved powers model. Under this model, the presumption is reversed. All areas are within legislative competence unless they are “reserved” to the UK Parliament. There are also some general restrictions, with everything else being within the Senedd’s legislative competence.

This move to reserved powers was a key recommendation made by both the Richard Commission and the Silk Commission and was delivered through the Wales Act 2017. The model was intended to create “greater certainty” as to what is and isn’t devolved, leading to fewer referrals to the Supreme Court and would therefore help create a devolution settlement “more workable for those who have to operate within it”. In reality, disagreements over competence have remained between the UK and Welsh governments.

In this period, the Senedd has passed some landmark pieces of legislation, including:

The Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020 removed the defence of ‘reasonable punishment’ for parents (or those acting in loco parentis) charged with “common assault” of a child.

The Senedd and Elections (Wales) Act 2020 renamed the National Assembly for Wales as Senedd Cymru – Welsh Parliament, lowered the minimum voting age for Senedd and local government elections to 16, and expanded the franchise to include qualifying foreign nationals.

The Social Partnership and Public Procurement (Wales) Act 2023 places a statutory duty on some public bodies to consider socially responsible public procurement. The Act also requires them to seek consensus or compromise with their recognised trade unions when setting their well-being objectives under the Well-being of Future Generations (Wales) Act 2015.

A process, not an event

Over the 25 years of devolution, the Senedd’s ability to pass laws has changed and evolved many times. The reserved powers model introduced in 2018 is supposed to produce a “clearer and more stable and long-lasting devolution settlement for Wales”. But this has not stopped the conversation about Wales’ constitutional future.

The Independent Commission on the Constitutional Future of Wales, established by the Welsh Government as part of its previous Co-operation Agreement with Plaid Cymru, has called for further devolution in areas such as policing, justice and rail services.

The UK’s withdrawal from the EU in 2020 has also had a significant impact on law-making in Wales and across the UK. Another article in this series, Leaving the European Union, looks at this in more detail.

It's clear Ron Davies’ now famous description of devolution as a “process, not an event” has defined the Senedd’s first 25 years.

Article by Josh Hayman, Senedd Research, Welsh Parliament