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LAWS10202 Advanced Legal Writing

Published : 01-Oct,2021  |  Views : 10


Part A 

a.Explain what legislative competence means in relation to devolution in the United Kingdom, including a relevant example from Scotland or Northern Ireland.

b.Find section 3 of the Wales Act 2017 using a legal database. Then read the following blog:
David S. Moon and Tomos Evans, How not to do devolution: Wales and the problem of legislative competence (LSE British Politics and Policy, 30 March 2017).

Using section 3 of the Wales Act 2017, with reference to subsections (1), (2) and (6) of s108A, and the Moon and Evans blog, explain the legislative competence of the Welsh Assembly under the 2017 Act. How does this differ from the legislative competence of the Welsh Assembly prior to section 3 of the 2017 Act coming into force?

Part B

This is a short answer question, meaning that we expect a clear and concise answer which addresses the question, but you do not need to include an introduction, main body and conclusion.
In part
(a) you should explain clearly what legislative competence is, as it relates to devolution in the United Kingdom. Unit 2 contains the content that you will use in your answer. You should start your answer by defining devolution and legislative competence in your own words. You should include an example from either Scotland or Northern Ireland as part of your answer.
In part
(b) you need to use one of the legal databases identified in Legal Skills unit 2 (LexisLibrary, Westlaw or to find section 3 of the Wales Act 2017. Section 3.1 of Legal Skills 2 explains how to find legislation through a legal database. Section 3 of the Wales Act 2017 provides for the legislative competence of the Welsh Assembly. You should then read the Moon and Evans blog.


Part A

According to MacKinnon (2015) devolution is the act of transferring or delegating authority to a lower level, generally by the central government to the regional or local administration.  A Legislative competence order is also a form of devolution.

Legislative competence order is a special kind of legislation secondary in nature which delegates the power of enacting legislation form one parliament to another. The order is generally passed by the UK parliament to enable the welsh assembly to enact law in relation to specific policy areas. The proposed law is known as bill and the enacted laws are known as acts. Approval has to be gained by the LOC by the welsh assembly, secretary of state, both houses of parliament and finally the Queen in Council. In UK devolution means statutorily granting powers to the national assembly of Wales, the London Assembly, the northern Ireland assembly and the Scottish parliament and subsequently to their executive bodies such as the welsh government, the Scottish government and northern Ireland executive.  The process of devolution is different from federalism where the state is a unitary state as the sub national authority ultimately vests in the central government.  Laws which create developed assemblies or parliaments can be amended or repealed by the central government just like any other statue (Simpson 2015).

One of the examples of devolution to Ireland was that on 12th April 2010 several legislative powers had been transferred to the Irish assembly which included justice and policing powers. In 1997 the newly created welsh parliament had the authority to make primary legislations in all areas of policy which are not reserved expressly for the UK parliament like international affairs and national defense.

Part B

Section 3 of the Welsh Act 2017 replaces section 108 of the Welsh Act 2006 with section 108A in relation to Legislative Competence.  The new legislation provides the following regulations with respect to legislative competence. According to section 108A (1) of the 2017 Act any act of the assembly would not be considered as a law if such provisions are not within the scope of Assembly’s legislative competence. According to section 108A (2) of the 2017 Act a regulation would not be within the competency if it extends to otherwise than to England and Wales only, it is applicable otherwise than with respect to Wales or imposes, modifies, removes or confers functions which can be exercised otherwise than with respect to Wales, it is in relation to matters which are reserved, it violates any restrictions as provided in part 1 of scheduled 7B in relation to any exception provided in part 2 of the schedule to the restrictions and it is not compatible with the EU laws or convention rights.  However section  2(b) is not  applicable on provisions which are attached to a provisions of an Assembly Measure or an  Act of the Assembly  or towards a devolved regulation if an legislation of the parliament as well as it must not have any greater effect other than in relation to Wales or related to functions exercised otherwise related to Wales, other than what is required to provide effect to the object of such provision. According to section 108A (6) of the 2017 Act in order to determine whether an Act of the assembly is related to a reserved matter reference to the objective of the provision is made which respect to its effect under all circumstances among all other things.  

The above discussed provision replaces the provisions of section 108 of the 2006 Act. According to the provisions of 108(1) an act of the assembly had the power to make any provisions which could be made by the parliament. According to section 108(2) the acts would not be considered as law if they are not within the competence of the assembly. A provisions would be deemed to be outside the legislative competency of the assembly if it violates restriction in part 2 schedule 7 in relation to any exception provided in part 3 of the schedule to the restrictions and it is not compatible with the EU laws or convention rights.

According to (2017) the new Act is a better way to resolve the ever existing criticism with respect to legislative competence of Wales. However not all the problems posed by the reserved model would be addressed through the enactment of the new legislation. Unlike the Irish or Scottish model of legislative competence Wales has a very reserved model. Form long the model of devolution which is adopted by the UK parliament in relation to Wales had set an example how the process should not be done. The new legislation also been criticized by many eminent personalities. Richard Rawlings serving the Welsh advisory committee of the law commission stated that the new legislation “carries the seeds of its own destruction”. There have been many situations where the law making power of the Welsh assembly has been challenged before the supreme court because of allegedly not meeting legislative competency. Few examples of this is in relation to trade union law where it had been argued by the UK government that as the law is not developed it an attempt of the welsh government to legislate in the area would end up in the supreme court.

Although a strong and lasting devolution settlement has been provided by the new legislation, only the reserved versus conferred powers model debate have been settled by it. Discussion over whether authority should settle in London or Cardiff especially over judiciary and policing is bound to continue. Thus the legislation creates problems as much as it creates and where one step is taken to resolve the problem two steps are taken backwards.  There is a significant difference which would be observed with the passing of the 2017 act in relation to how legislative competence and devolution worked prior to it. The legislation now sets out what power the legislative assembly of Wales does not have rather than the power it  has in relation to making legislation (Harvey  2017).

References: (2017). How not to do devolution: Wales and the problem of legislative competence | British Politics and Policy at LSE. [online] Available at: [Accessed 16 Nov. 2017].

Harvey, M., 2017, September. Devolution in the United Kingdom: An Ongoing Process. In Federal Power-Sharing in Europe (pp. 207-228). Nomos Verlagsgesellschaft mbH & Co. KG.

MacKinnon, D., 2015. Devolution, state restructuring and policy divergence in the UK. The Geographical Journal, 181(1), pp.47-56.

Simpson, M., 2015. As Scotland and Wales demand greater devolution Northern Ireland is handing power back to Westminster. Democratic Audit UK.

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