Contemporary Welsh Law
Encyclopedia
Contemporary Welsh Law is a term applied to the body of primary
and secondary legislation
generated by the National Assembly for Wales
, according to devolved authority
granted in the Government of Wales Act 2006
. Each piece of Welsh legislation is known as an Act of the Assembly
. The first Assembly legislation to be officially proposed was called the NHS Redress (Wales) Measure 2008
. These powers have been effective since May, 2007. It is the first time in almost 500 years that Wales has had its own laws, since Cyfraith Hywel
, a version of Celtic law
, was abolished and replaced by English law
through the Laws in Wales Acts, passed between 1535 and 1542 by King Henry VIII of England
.
and the Government of Wales Act 2006
set out areas of devolved responsibility for the National Assembly for Wales
(commonly known as the Welsh Assembly). The acts show where legislative competence lies and what laws (known as Assembly Measures) the Welsh Assembly can make. In order to draft laws that are part of its area of responsibility, but where the powers of legislative competence have not been devolved to it, the Welsh Assembly can request these powers using a Legislative Competency Order
or they can receive the transfer of power and the right to make laws through Parliamentary bills.
Each Order in Council for an area of legislation must be approved by the Secretary of State for Wales
, both Houses of Parliament, and the Queen in Council
in order for the Assembly to legislate in that area. Once the Queen has approved the Order, the new area of legislative competence is added to Schedule 5, Part 1 of the Government of Wales Act 2006. There is a Counsel General for Wales
who oversees the approval and creation of these laws, and gives advice to the Welsh Government.
Following the devolution of legislative competence to the Welsh Assembly in some area of responsibility, it is unlikely that the UK Parliament would draw up legislation in that area without a motion being passed by the Welsh Assembly to allow them to do so (Standing order 26). This is done to preserve the autonomy of the Welsh Assembly, and to prevent legislative confusion.
.
The Assembly can also legislate in areas that affect only the Assembly itself, which is why the National Assembly for Wales field is added.
The referendum was held on 3 March 2011. The majority of the participants voted 'Yes' to the question "Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?".
Even so, future Welsh order in council laws may face veto from the UK Parliament, but the Assembly still is able to make laws in areas already devolved because once the referendum is approved, there are powers that are already in the government of Wales Act 2006 to make laws already approved by parliament when the act was passed. The Assembly can still request to make laws in areas using the Order in Council system but if the UK Parliament wants to legislate in a devolved area, it will require a motion to be passed by the Welsh Assembly, similar to the way the Scottish Parliament work at present. The power to make Acts of the Assembly are called Subjects, which is schedule 7, part 1 of the Government of Wales Act 2006
.
settlement. Contemporary Welsh law will govern the local aspects of Welsh life whilst English law will govern the more generic aspects. Because these laws are derived from UK Acts of Parliament, some people consider this new system of laws to be another branch of English law
. Unlike Scotland
, for example, which has its own criminal and civil justice system, Wales still has a unified justice system with England
. The 'One Wales' Labour/Plaid Cymru deal also has an area for devolution of a Criminal and Youth Justice System to this new legal system.
It is important to note, that English law still applies in Wales, but it will also be important to say that some laws in England, that are devolved in Wales, may not apply in Wales. It is also possible to say that once the Assembly has legislative competency in an area to legislate using Acts of the Assembly, the National Assembly could lead Wales down a different route compared to English law. It's possible to say that there could be some acts that would be illegal in Wales, but not illegal in England and Scotland.
". Each Act contains provisions for the Welsh Assembly to make subordinate legislation on. Sometimes such Acts can also confer power to the National Assembly for Wales
. An example of such a Wales-only law is the Transport (Wales) Act 2006
. This Act allows the National Assembly to make Orders to enforce the provisions in the Act. The Act does not confer power to the Assembly to make Assembly Measures.
A major difference is also the use of the Welsh language
, as laws concerning it apply in Wales and not in England. The Welsh Language Act 1993
is an Act of the Parliament of the United Kingdom, which put the Welsh language on an equal footing with the English language in Wales with regard to the public sector. Welsh can also be spoken in Welsh courts.
within contemporary Welsh law, Wales
cannot be considered a fourth jurisdiction
of the United Kingdom
. This is because the judiciary and the courts follow England and Wales
law, which is made by the United Kingdom Parliament, and is not specific to Wales. Although Welsh law is recognised as separate in operation, this is not sufficient for Wales to constitute a separate legal jurisdiction. If the One Wales
agreement is successful, before 2011, this may change, as the agreement calls for a review of criminal justice
matters in Wales, and the question of whether it should be devolved to Wales; currently, however, there is no devolution of justice to the Assembly
.
Primary legislation
Primary legislation is law made by the legislative branch of government. This contrasts with secondary legislation, which is usually made by the executive branch...
and secondary legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
generated by the National Assembly for Wales
National Assembly for Wales
The National Assembly for Wales is a devolved assembly with power to make legislation in Wales. The Assembly comprises 60 members, who are known as Assembly Members, or AMs...
, according to devolved authority
Devolution
Devolution is the statutory granting of powers from the central government of a sovereign state to government at a subnational level, such as a regional, local, or state level. Devolution can be mainly financial, e.g. giving areas a budget which was formerly administered by central government...
granted in the Government of Wales Act 2006
Government of Wales Act 2006
The Government of Wales Act 2006 is an Act of the Parliament of the United Kingdom that reforms the National Assembly for Wales and allows further powers to be granted to it more easily...
. Each piece of Welsh legislation is known as an Act of the Assembly
Act of the National Assembly for Wales
In Wales, an Act of the National Assembly for Wales is primary legislation that can be made by the National Assembly for Wales under part 4 of the Government of Wales Act 2006...
. The first Assembly legislation to be officially proposed was called the NHS Redress (Wales) Measure 2008
NHS Redress (Wales) Measure 2008
The NHS Redress Measure 2008 is the first piece of primary legislation passed by the Welsh Assembly with its greater law-making powers in the wake of the Government of Wales Act 2006. It was passed by the Welsh Assembly on 6 May 2008 and became law on 9 July 2008 when the Queen approved it through...
. These powers have been effective since May, 2007. It is the first time in almost 500 years that Wales has had its own laws, since Cyfraith Hywel
Welsh law
Welsh law was the system of law practised in Wales before the 16th century. According to tradition it was first codified by Hywel Dda during the period between 942 and 950 when he was king of most of Wales; as such it is usually called Cyfraith Hywel, the Law of Hywel, in Welsh...
, a version of Celtic law
Celtic law
A number of law codes have in the past been in use in Celtic countries. While these vary considerably in details, there are certain points of similarity....
, was abolished and replaced by English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
through the Laws in Wales Acts, passed between 1535 and 1542 by King Henry VIII of England
Henry VIII of England
Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
.
Legislative Competence - National Assembly for Wales
Both the Government of Wales Act 1998Government of Wales Act 1998
This is about the Act that set up the Welsh Assembly. For the newer Government of Wales Act 2006, see that article.The Government of Wales Act 1998 This is about the Act that set up the Welsh Assembly. For the newer Government of Wales Act 2006, see that article.The Government of Wales Act 1998...
and the Government of Wales Act 2006
Government of Wales Act 2006
The Government of Wales Act 2006 is an Act of the Parliament of the United Kingdom that reforms the National Assembly for Wales and allows further powers to be granted to it more easily...
set out areas of devolved responsibility for the National Assembly for Wales
National Assembly for Wales
The National Assembly for Wales is a devolved assembly with power to make legislation in Wales. The Assembly comprises 60 members, who are known as Assembly Members, or AMs...
(commonly known as the Welsh Assembly). The acts show where legislative competence lies and what laws (known as Assembly Measures) the Welsh Assembly can make. In order to draft laws that are part of its area of responsibility, but where the powers of legislative competence have not been devolved to it, the Welsh Assembly can request these powers using a Legislative Competency Order
Legislative Competency Order
In Wales, a Legislative Competence Order was a piece of constitutional legislation in the form of an Order in Council. It transferred legislative authority from the Parliament of the United Kingdom to the National Assembly for Wales...
or they can receive the transfer of power and the right to make laws through Parliamentary bills.
Each Order in Council for an area of legislation must be approved by the Secretary of State for Wales
Secretary of State for Wales
The Secretary of State for Wales is the head of the Wales Office within the British cabinet. He or she is responsible for ensuring Welsh interests are taken into account by the government, representing the government within Wales and overseeing the passing of legislation which is only for Wales...
, both Houses of Parliament, and the Queen in Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
in order for the Assembly to legislate in that area. Once the Queen has approved the Order, the new area of legislative competence is added to Schedule 5, Part 1 of the Government of Wales Act 2006. There is a Counsel General for Wales
Counsel General for Wales
The Counsel General for Wales advises the Welsh Government on Welsh legislative matters and advises on legislative competency. The position of the Counsel General for Wales is described in the Government of Wales Act 2006 and controlled in Standing Order 5 ....
who oversees the approval and creation of these laws, and gives advice to the Welsh Government.
Following the devolution of legislative competence to the Welsh Assembly in some area of responsibility, it is unlikely that the UK Parliament would draw up legislation in that area without a motion being passed by the Welsh Assembly to allow them to do so (Standing order 26). This is done to preserve the autonomy of the Welsh Assembly, and to prevent legislative confusion.
Areas to legislate: The devolved areas
These areas are "subjects" where the National Assembly for Wales can make legislation in the form of an Act of the AssemblyAct of the National Assembly for Wales
In Wales, an Act of the National Assembly for Wales is primary legislation that can be made by the National Assembly for Wales under part 4 of the Government of Wales Act 2006...
.
- AgricultureAgricultureAgriculture is the cultivation of animals, plants, fungi and other life forms for food, fiber, and other products used to sustain life. Agriculture was the key implement in the rise of sedentary human civilization, whereby farming of domesticated species created food surpluses that nurtured the...
, fisheries, forestryForestryForestry is the interdisciplinary profession embracing the science, art, and craft of creating, managing, using, and conserving forests and associated resources in a sustainable manner to meet desired goals, needs, and values for human benefit. Forestry is practiced in plantations and natural stands...
and rural developmentRural developmentRural development in general denotes economic development and community development actions and initiatives taken to improve the standard of living in non-urban neighbourhoods, remote villages and the countryside... - Ancient monuments and historic buildingsCadw-Conservation and Protection:Many of Wales's great castles and other monuments, such as bishop's palaces, historic houses, and ruined abbeys, are now in Cadw's care. Cadw does not own them but is responsible for their upkeep and for making them accessible to the public...
- Culture
- Economic developmentEconomic developmentEconomic development generally refers to the sustained, concerted actions of policymakers and communities that promote the standard of living and economic health of a specific area...
- Education and trainingEducation in WalesEducation in Wales differs in certain respects from education elsewhere in the United Kingdom. For example, a significant number of students all over Wales are educated either wholly or largely through the medium of Welsh: in 2008/09, 22 per cent of classes in maintained primary schools used Welsh...
- EnvironmentNatural environmentThe natural environment encompasses all living and non-living things occurring naturally on Earth or some region thereof. It is an environment that encompasses the interaction of all living species....
- Fire and rescue services and promotion of fire safety
- FoodFoodFood is any substance consumed to provide nutritional support for the body. It is usually of plant or animal origin, and contains essential nutrients, such as carbohydrates, fats, proteins, vitamins, or minerals...
- Heath and health services
- Highways and transport
- HousingHouseA house is a building or structure that has the ability to be occupied for dwelling by human beings or other creatures. The term house includes many kinds of different dwellings ranging from rudimentary huts of nomadic tribes to free standing individual structures...
- Local governmentLocal governmentLocal government refers collectively to administrative authorities over areas that are smaller than a state.The term is used to contrast with offices at nation-state level, which are referred to as the central government, national government, or federal government...
- Public administration
- National Assembly for WalesNational Assembly for WalesThe National Assembly for Wales is a devolved assembly with power to make legislation in Wales. The Assembly comprises 60 members, who are known as Assembly Members, or AMs...
- Social welfare
- Sport and recreation
- TourismTourismTourism is travel for recreational, leisure or business purposes. The World Tourism Organization defines tourists as people "traveling to and staying in places outside their usual environment for not more than one consecutive year for leisure, business and other purposes".Tourism has become a...
- Town and country planning
- Water and flood defence
- Welsh languageWelsh languageWelsh is a member of the Brythonic branch of the Celtic languages spoken natively in Wales, by some along the Welsh border in England, and in Y Wladfa...
The Assembly can also legislate in areas that affect only the Assembly itself, which is why the National Assembly for Wales field is added.
Referendum to make Acts of the Assembly
The Welsh Assembly was able to make only Assembly Measures, but the Assembly was given the option to call for a referendum, with added approval from the UK Parliament, to make Acts of the Assembly. This would not change much of the Assembly Measures system, and if the referendum should win, the Assembly Measures passed before that date would still be in force. It was considered that Assembly Measures are a build on to the Acts of the Assembly if the Assembly would these powers in future.The referendum was held on 3 March 2011. The majority of the participants voted 'Yes' to the question "Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?".
Even so, future Welsh order in council laws may face veto from the UK Parliament, but the Assembly still is able to make laws in areas already devolved because once the referendum is approved, there are powers that are already in the government of Wales Act 2006 to make laws already approved by parliament when the act was passed. The Assembly can still request to make laws in areas using the Order in Council system but if the UK Parliament wants to legislate in a devolved area, it will require a motion to be passed by the Welsh Assembly, similar to the way the Scottish Parliament work at present. The power to make Acts of the Assembly are called Subjects, which is schedule 7, part 1 of the Government of Wales Act 2006
Government of Wales Act 2006
The Government of Wales Act 2006 is an Act of the Parliament of the United Kingdom that reforms the National Assembly for Wales and allows further powers to be granted to it more easily...
.
English Law and Contemporary Welsh Law
English law, or UK laws still apply to Wales under the present devolutionDevolution
Devolution is the statutory granting of powers from the central government of a sovereign state to government at a subnational level, such as a regional, local, or state level. Devolution can be mainly financial, e.g. giving areas a budget which was formerly administered by central government...
settlement. Contemporary Welsh law will govern the local aspects of Welsh life whilst English law will govern the more generic aspects. Because these laws are derived from UK Acts of Parliament, some people consider this new system of laws to be another branch of English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
. Unlike Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, for example, which has its own criminal and civil justice system, Wales still has a unified justice system with England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
. The 'One Wales' Labour/Plaid Cymru deal also has an area for devolution of a Criminal and Youth Justice System to this new legal system.
It is important to note, that English law still applies in Wales, but it will also be important to say that some laws in England, that are devolved in Wales, may not apply in Wales. It is also possible to say that once the Assembly has legislative competency in an area to legislate using Acts of the Assembly, the National Assembly could lead Wales down a different route compared to English law. It's possible to say that there could be some acts that would be illegal in Wales, but not illegal in England and Scotland.
Wales-only Laws
There are Acts of the United Kingdom parliament that are classed as "Wales-only lawsWales-only laws
Wales-only Laws are Acts of the United Kingdom Parliament that only relate to Wales. Each law would then either grant the Assembly power to make delegated legislation or would transfer power to the National Assembly for Wales to make Assembly Measures in certain devolved areas.Wales-only Laws are...
". Each Act contains provisions for the Welsh Assembly to make subordinate legislation on. Sometimes such Acts can also confer power to the National Assembly for Wales
National Assembly for Wales
The National Assembly for Wales is a devolved assembly with power to make legislation in Wales. The Assembly comprises 60 members, who are known as Assembly Members, or AMs...
. An example of such a Wales-only law is the Transport (Wales) Act 2006
Transport (Wales) Act 2006
The Transport Act 2006 is an Act of the Parliament of the United Kingdom. It was passed in response to a resolution approved by the National Assembly for Wales on 17 March 2004.-Section 12 - Commencement: The Transport (Wales) Act 2006 (c 5) is an Act of the Parliament of the United Kingdom. It...
. This Act allows the National Assembly to make Orders to enforce the provisions in the Act. The Act does not confer power to the Assembly to make Assembly Measures.
A major difference is also the use of the Welsh language
Welsh language
Welsh is a member of the Brythonic branch of the Celtic languages spoken natively in Wales, by some along the Welsh border in England, and in Y Wladfa...
, as laws concerning it apply in Wales and not in England. The Welsh Language Act 1993
Welsh Language Act 1993
The Welsh Language Act 1993 , is an Act of the Parliament of the United Kingdom, which put the Welsh language on an equal footing with the English language in Wales with regard to the public sector....
is an Act of the Parliament of the United Kingdom, which put the Welsh language on an equal footing with the English language in Wales with regard to the public sector. Welsh can also be spoken in Welsh courts.
Wales as a Jurisdiction
As there is no Criminal lawCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
within contemporary Welsh law, Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
cannot be considered a fourth jurisdiction
Law of the United Kingdom
The United Kingdom has three legal systems. English law, which applies in England and Wales, and Northern Ireland law, which applies in Northern Ireland, are based on common-law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-law principles, with common law...
of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. This is because the judiciary and the courts follow England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
law, which is made by the United Kingdom Parliament, and is not specific to Wales. Although Welsh law is recognised as separate in operation, this is not sufficient for Wales to constitute a separate legal jurisdiction. If the One Wales
One Wales
One Wales is the coalition agreement for the National Assembly for Wales between Labour and Plaid Cymru agreed to by Rhodri Morgan, First Minister of Wales and leader of Welsh Labour, and Ieuan Wyn Jones, leader of Plaid Cymru, on 27 June 2007. It was negotiated in the wake of the preceding...
agreement is successful, before 2011, this may change, as the agreement calls for a review of criminal justice
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
matters in Wales, and the question of whether it should be devolved to Wales; currently, however, there is no devolution of justice to the Assembly
National Assembly for Wales
The National Assembly for Wales is a devolved assembly with power to make legislation in Wales. The Assembly comprises 60 members, who are known as Assembly Members, or AMs...
.
See also
- Schedule 5 of the Government of Wales Act 2006
- Royal Commission on the Constitution (United Kingdom)Royal Commission on the Constitution (United Kingdom)The Royal Commission on the Constitution, also referred to as the Kilbrandon Commission or Kilbrandon Report, was a long-running royal commission set up by Harold Wilson's Labour government to examine the structures of the constitution of the United Kingdom and the British Islands and the...
- National Assembly for WalesNational Assembly for WalesThe National Assembly for Wales is a devolved assembly with power to make legislation in Wales. The Assembly comprises 60 members, who are known as Assembly Members, or AMs...
- Welsh Government
- English LawEnglish lawEnglish law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
- Northern Ireland lawNorthern Ireland lawNorthern Ireland law refers to the legal system of statute and common law operating in Northern Ireland since Northern Ireland was established as a separate jurisdiction within the United Kingdom in 1921.-Background:...
- Scots LawScots lawScots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...