Throughout its 25-year history, the Senedd’s relationship with the UK Parliament has been a crucial element of Welsh law-making.
This article explores this relationship since 1999 and considers, even with the Senedd’s growing devolved powers, the enduring significance of the UK Parliament.
Early years of the Assembly
In 1999, the then National Assembly for Wales was established as a single “corporate body” – there was no formal separation of the executive and legislature.
The Assembly didn’t have primary legislative powers and could only make subordinate legislation in areas which had been devolved through the Government of Wales Act 1998. This meant the UK Parliament remained responsible for passing primary legislation for Wales.
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What is secondary legislation? Also commonly known as subordinate or delegated legislation, secondary legislation is law made by Ministers (or other bodies) under powers given to them by primary legislation (usually an Act). During its first two terms, the Assembly made use of secondary legislative powers to implement policy changes, explained in another article in this series. |
The two institutions maintained a close relationship and the UK Parliament sometimes passed Wales-specific Acts and Acts containing provision for Wales.
For example, in 2001 the UK Parliament passed the Children’s Commissioner for Wales Act following recommendations from an Assembly Committee. The Act amended the Care Standards Act 2000, which had established the post of Commissioner, and set out its remit in line with the Committee’s recommendations.
The Assembly relied on Westminster allocating legislative time during this period. Effective communication between MPs and AMs was important to ensure Welsh issues were considered in Westminster legislation. While Assembly committees considered legislative proposals, there was no formal mechanism for them to convey their views on legislation going through the UK Parliament.
Introduction of primary legislative powers
In 2002, the First Minister, Rhodri Morgan AM, established the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (the Richard Commission).
The Richard Commission found that the powers of the Assembly and (de facto) Welsh Assembly Government had developed in an ad hoc way, and both bodies had been “heavily involved” in developing legislation, including through working with the UK Parliament.
The Commission recommended that the Assembly be granted primary legislative powers.
The subsequent Government of Wales Act 2006 (GoWA) altered the legislative powers of the Assembly, through:
- establishing a formal separation between the legislature (Assembly) and executive (Welsh Assembly Government);
- granting the Assembly the ability to pass primary law-making powers (known as Measures) subject to Legislative Competence Orders (LCOs) within 20 listed areas; and
- granting the Assembly full primary legislative powers in those listed areas, subject to a referendum.
The LCO system required joint working between the Assembly and UK Parliament. The Assembly and both Houses of Parliament had to consent to an LCO for the Assembly to gain the ability to pass a Measure. UK Parliament committees, such as the Welsh Affairs Committee and Constitution Committee, also had a role in pre-legislative scrutiny of an LCO, as did Assembly committees.
Law-making powers could also be devolved to the Assembly through Westminster legislation, as happened with the Marine and Coastal Access Act 2009 which provided “Measure-making powers for the Assembly on coastal access”. Unlike LCOs, powers devolved through Westminster Bills did not have to fall within the 20 devolved areas listed in GoWA.
Growing legislative powers – the 2011 referendum
In a 2011 referendum, 63.5% voted to grant the Assembly full law-making powers in the areas for which it already had responsibility. This meant the Assembly could pass laws in these areas “without recourse to Westminster”.
This move significantly changed the relationship between the Assembly and UK Parliament, ending the LCO process.
However, as anticipated by the Richard Commission, after the Assembly gained primary powers, Westminster continued “to legislate extensively for Wales in relation to both devolved and non-devolved matters”. Parliamentary sovereignty meant that the Assembly gaining the ability to pass primary legislation did not impact on the powers of the UK Parliament.
Legislative consent: a shared space for law making
While the UK Parliament can still legislate on devolved matters, the Sewel Convention provides that it does not normally do so without the consent of the Senedd.
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What is the Sewel Convention? This is the set of processes and procedures that allow a devolved legislature to decide whether to grant or withhold consent to a UK Bill that covers some part of devolved powers. The Convention is that the UK Parliament will not normally legislate if a devolved legislature withholds its consent, but it can choose to do so if it wishes. The Wales Act 2017 put the Sewel Convention into statute with regards to Wales. In 2017, the Supreme Court ruled that the Sewel Convention cannot be enforced by legal action. The Court said: The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law. The ruling was significant and left no doubt that the Sewel Convention is merely a political convention which therefore cannot be enforced by the courts. |
Where the UK Parliament wishes to make laws on devolved matters, the Senedd indicates formally whether it consents through a Legislative Consent Motion (LCM).
The first LCM was introduced (and agreed) in 2008 and related to the Education and Skills Bill.
While the Sewel Convention is not legally binding, withholding consent has sometimes led to the UK Government making changes. In February 2011, the Assembly voted to refuse consent (for the first time) to part of the Police Reform and Social Responsibility Bill. The UK Government subsequently made amendments to “respect the Assembly’s decision”.
Broadening the scope of the Assembly's powers brought with it an increase in the areas for which LCMs were required.
During the Fourth Assembly (2011-2016), 36 LCMs were voted on. Six of these were not agreed. On four occasions during this term, the UK Parliament legislated despite the Assembly withholding consent. Disagreements often related to whether an area was devolved to the Assembly or reserved to the UK Parliament. Such debates contributed to reform of the devolution settlement.
During the Fifth Assembly (2016-2021), debates around legislative consent intensified following the UK’s vote to leave the EU. For example, the Welsh Government’s original recommendation that the Senedd withhold consent to the European Union (Withdrawal) Bill resulted in amendments and an intergovernmental agreement between the Welsh and UK governments..
A significant breach of the Sewel Convention occurred when the UK Parliament passed the United Kingdom Internal Market Act 2020 against the wishes of the Senedd. Senedd committees argued that the Act would reduce the practical effect of Welsh law.
Relationship with the UK Parliament in the Sixth Senedd
The Sixth Senedd (2021-2026) has seen an increase in the number of LCMs; 115 LCMs or Supplementary LCMs relating to 47 Bills have been laid so far.
Welsh governments have used Bills introduced to the UK Parliament to make changes in devolved areas, arguing that using UK Bills is sometimes “sensible and advantageous”.
However, there has also been an increase in the number of UK Bills making provision in devolved areas without the consent of the Senedd. Former First Minister, Mark Drakeford MS, expressed concern that breaching the Sewel Convention has become “almost normalised”.
The Senedd’s Legislation, Justice and Constitution Committee argued that the use of UK Bills to make provision in devolved areas, whether such provision is sought by the Welsh Government or not, is creating a “democratic deficit” which is bypassing the Senedd's legislative scrutiny functions.
Enduring importance
Though the Senedd has much enhanced legislative powers compared with 1999, the UK Parliament continues to make a significant contribution to the law relating to devolved areas in Wales. The relationship between Wales and Westminster remains a key feature of law-making in Wales.
The UK’s exit from the EU, and resulting changes to the UK constitution, have brought a renewed focus to the issue of parliamentary sovereignty and legislative consent.
Article by Adam Cooke, Senedd Research, Welsh Parliament
