1 Draft
S.I.: reported for doubtful vires
Draft National Assembly for Wales (Legislative
Competence) (Housing) Order 2009
1.1 The Committee draws the special attention
of both Houses to this draft Order on the ground that there appears
to be a doubt in one respect that, if it were approved and made,
it would be intra vires.
Legislative background
1.2 Section 93(1) of the Government of Wales Act
2006 ("the 2006 Act") enables the National Assembly
for Wales ("the Assembly") to make laws known as Measures.
Measures may, subject to other provisions of the 2006 Act, make
any provision which could be made by Act of Parliament. A provision
of a Measure is within the legislative competence of the Assembly
only if, in particular, it relates to a matter specified in Part
1 of Schedule 5 to the 2006 Act. But a provision is outside the
Assembly's legislative competence if it breaches any of the restrictions
in Part 2 of Schedule 5 having regard to any exception in Part
3 of Schedule 5.
1.3 Section 95 of the 2006 Act enables an Order in
Council to amend Parts 1, 2 and 3 of Schedule 5. As explained
in paragraph 344 of the Explanatory Notes to the 2006 Act, "An
Order in Council under this section may be made only if the draft
of it has been approved by the Assembly, the House of Commons
and the House of Lords. Thus Parliament retains control over the
… matters in relation to which the Assembly has power to
pass Measures".
1.4 When the 2006 Act was enacted, the only matters
specified in Part 1 of Schedule 5 related to the Assembly itself.
The intention was that Orders in Council under section 95 would
confer further legislative competence on the Assembly. "The
effect of an individual Order in Council will be to insert a description
of the "matter" in relation to which the Assembly is
to be given enhanced legislative competence, together with any
specific exceptions necessary accurately to define its scope".
(Paragraph 316 of the Explanatory Notes to the 2006 Act).
1.5 Schedule 5 has been amended by Acts of Parliament
and Orders under section 95. The current Schedule 5 can be seen
from Annex A to the Explanatory Memorandum for this draft Order.
Some of the matters in Part 1 of Schedule 5 are set out in general
terms, and others are set out in more detail, with specific exceptions
as envisaged by the Explanatory Notes to the 2006 Act (Matters
5.17, 10.1, 15.1, 18.1 and 18.3 and the Tables of Exceptions at
the end of Part 1).
The draft Order
1.6 This draft Order under section 95 would add a
new Matter 11.1 in Part 1 of Schedule 5: "Disposal by a social
landlord of land held or used for housing purposes." "Social
landlord" is defined in some detail and disposals are described
in a way which covers disposals pursuant to particular rights
to buy or acquire ("the rights to buy").
1.7 Article 2(2) of the draft Order adds to Part
2 of Schedule 5 a restriction (in new paragraph 2B) that a Measure
cannot abolish the rights to buy. But Article 2(3) of the draft
Order adds to Part 3 of Schedule 5 an exception (in new paragraph
7B) that Part 2 does not prevent a provision of a Measure from
abolishing any of the rights to buy "if both the Welsh Ministers
and the Secretary of State consent to the provision".
The Committee's initial consideration
1.8 The draft Order seemed to delegate to the Welsh
Ministers and the Secretary of State the decision whether the
Assembly should have the legislative competence to abolish the
rights to buy, without express authorisation in section 95. As
in practice the new restriction in Part 2 could relate only to
the new Matter 11.1, the draft Order appeared in effect to provide
that Matter 11.1 was subject to the exception that it did not
include abolition of the rights to buy unless the Welsh Ministers
and the Secretary of State agreed that it should. This seemed
a remarkable proposition in the context of an Order setting out
part of the constitutional arrangement between Parliament and
the Assembly.
The Department's response
1.9 In response to questions raised by the Committee,
the Wales Office submitted a memorandum, printed at Appendix 1.
1.10 The Department explain that new paragraphs 2B
and 7B restrict the effect that a Measure may have, rather than
narrow the subject-matter that is within the Assembly's competence.
They say further that new paragraphs 2B and 7B do not unlawfully
delegate the power to define the Assembly's legislative competence;
rather, they simply place a restriction on how that competence
may be exercised. It is suggested that Parliament must have contemplated
the type of provision in new paragraph 7B of Part 3 of Schedule
5 because, in particular, Part 3 contained other consent provisions
on its enactment which are not significantly different.
The Committee's conclusions
1.11 New paragraphs 2B and 7B do more than simply
place a restriction on how the Assembly's competence may be exercised.
Section 94(6) of the 2006 Act says that "a provision…..is
outside the Assembly's legislative competence if….it breaches
any of the restrictions in Part 2 of Schedule 5, having regard
to any exception in Part 3…..". However the matter is
presented in the draft Order, the competence is ultimately defined
by reference to the consent of the Welsh Ministers and the Secretary
of State. If they consent, a provision of a Measure abolishing
the rights to buy is within competence. If they do not, the restriction
applies and the provision is not within competence.
1.12 The Committee agrees with the Department that
the existing entries in Parts 2 and 3 help to define the extent
of the power to make further entries. But the Committee does not
agree that the existing provisions in Parts 2 and 3 of Schedule
5 sufficiently support the case for new paragraph 7B proposed
in this Order.
1.13 Part 2 of Schedule 5 (headed "General Restrictions")
has always included restrictions on removing, modifying, conferring
or imposing functions on a Minister of the Crown or modifying
functions of the Comptroller and Auditor General (paragraphs 1
and 5). But Part 3 includes exceptions enabling a Measure to remove,
modify, confer or impose functions on a Minister of the Crown
or modify functions of the Comptroller and Auditor General with
the consent of the Secretary of State (paragraphs 7 and 8).
1.14 These restrictions and exceptions are, as would
be expected from the heading to Part 2, of general application
across all matters. The consent provisions in Part 3 are limited
to consent by the UK executive to Measures altering the UK executive's
own powers or those of the Comptroller and Auditor General. They
simply reflect, as near as may be, the position as it will be
under paragraphs 1, 4, 6 and 7 of Schedule 7 to the 2006 Act when,
following a referendum in accordance with Part 4 of the 2006 Act,
the Assembly has full power to pass its own Acts.
1.15 In 2007 an Act inserted a new paragraph 2A in
Part 2: "A provision of an Assembly Measure cannot make any
alteration in police areas", and a new paragraph 7A in Part
3 enabling the alteration of a police area's boundary with the
Secretary of State's consent. Paragraph 7A seems unsurprising
in its context, as Parliament had already delegated to the Secretary
of State in the Police Act 1996 the power to alter police areas.
It seems unlikely that Parliament believed that in including the
new paragraph 7A in 2007 it was widening the scope of the powers
conferred in 2006 by section 95.
1.16 The delegation in paragraph 7B proposed by this
Order differs in degree from the existing consent provisions.
First, it delegates power not only to the Secretary of State,
but also to the Welsh Ministers, who are not accountable to Parliament.
Secondly, unlike paragraphs 7 and 8, it relates to a specific
matter in Part 1 and so can be seen as undermining the principle
(paragraph 1.3 above) that Parliament retains control over the
matters in Part 1. Thirdly, the provision to be authorised by
the consent would inevitably impact directly not just on the Secretary
of State or administrative arrangements, but on the statutory
rights and liabilities of others (the social landlords and their
tenants).
1.17 Recognising the restrictions implied by law
on sub-delegation, the Committee has said (First Special Report
for Session 1977-78; HL51, HC139) that delegated legislation should
not depend on the exercise of ministerial or departmental discretion
unless provision to that effect is expressly contained in the
enabling statute. There are no express words in the 2006 Act authorising
the determination of the Assembly's competence by anything other
than an Order in Council; nor, in the Committee's view, is there
a sufficiently strong implication in the 2006 Act. The Committee
considers there is a doubt as to whether new paragraph 7B in Part
3 of Schedule 5 to the 2006 Act, to be inserted by article 2(3)
of the draft Order, is intra vires and reports accordingly.
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