The National Assembly for Wales assumed its full responsibilities on 1 July 1999 following the elections on 6 May that year. That marked a culmination of the process of implementing the Government’s vision of devolution in Wales, originally set out in the White Paper A Voice for Wales. The White Paper proposals were endorsed by the people of Wales in a referendum in September 1997, and subsequently given full effect through the Government of Wales Act 1998.

With the Assembly now nearing the completion of its first full term, the Government believes that devolution has been a great success. Devolution has become a settled part of the political landscape, and the National Assembly for Wales and Welsh Assembly Government have begun to make a real difference to the lives of the people of Wales, finding Welsh solutions to Welsh problems. It is important that the Assembly continues to be effective in delivering better public services and stronger communities for the people of Wales within the settlement for which they voted.

• The scheme of devolution set out in A Voice for Wales and endorsed by the people of Wales was deliberately very different to the approach adopted for Scotland. The Scottish settlement involves both legislative and executive devolution, and the Scottish Parliament has full legislative competence (i.e. it can pass both primary and secondary legislation). The Scotland Act 1998 sets out those powers reserved to the UK Parliament and Government, with everything else devolved to the Scottish Parliament and Executive. By contrast, Welsh devolution is purely executive, with the Assembly exercising powers formerly exercised by the Secretary of State for Wales. The Government of Wales Act 1998 therefore made provision for the establishment of the Assembly, leaving its detailed powers to be specified in a series of Transfer of Functions Orders made under the Act plus those conferred by subsequent primary legislation.
• The advantage to this approach lies in its considerable flexibility to adapt to circumstance. But the Transfer of Functions Orders are by their very nature not particularly "user-friendly" for ordinary people interested in finding out about the powers devolved to Wales. As with all legislation, they are drafted to achieve legal certainty. Using more "everyday" language would make it more difficult for legal advisers to advise policy-makers on the precise extent of the Assembly’s powers. Nevertheless, the Office of the Deputy Prime Minister’s Devolution Guidance Note 11 on Ministerial Accountability after Devolution was deliberately designed as a more accessible guide to the general scope of the Assembly’s powers. Though this Guidance Note is now in need of some up-dating to reflect a number of changes since it was first written.

  Whether both the breadth (i.e. the range of issues over which it has control) and the depth (i.e. the capacity to affect change within those issues) of the Assembly’s powers are adequate to permit integrated and consistent policy making on issues where there is a clear and separate Welsh agenda

• The Government believes that the current settlement does provide an adequate framework for integrated and consistent policy-making in Wales. The White Paper A Voice for Wales stated that:

  Parliament will continue to be the principal law maker for Wales.

  Nevertheless, it went on to say:

  The Government’s proposals will allow the Assembly to seek to influence legislation which is being considered at Westminster.

  And

  The Government will consider, in drafting each Bill that it introduces into Parliament, which of the new powers it contains should be exercised in Wales… As a general principle, the Government expects Bills that confer new powers and relate to the Assembly’s functions, such as education, health and housing, will provide for the powers to be exercised separately and differently in Wales; and to be exercised by the Assembly.

  The UK Government has therefore been willing, where possible, to accommodate a separate Welsh agenda in primary legislation. This has resulted in a number of Acts that contain significant Welsh provisions, as well as Wales-only legislation. (See the summary at Annex A.)

• Procedures for handling primary legislation affecting Wales are set out in the Office of the Deputy Prime Minister’s Devolution Guidance Note 9 (attached at Annex B). This states that the UK Government, through the lead UK department, should consult the Welsh Assembly Government at an early stage in the development of legislative proposals, in order to identify the level of interest for the Assembly and to ensure that the Bill is handled properly in relation to Wales. The guidance means that the Welsh Assembly Government should always be consulted on Bills which:

• confer new functions on the Assembly;

• alter the Assembly’s existing functions; or

• otherwise affect areas which are the responsibility of the Assembly, including where the Assembly will be responsible for implementation in Wales, though policy control remains with the UK Government.

In addition to liaising with the Welsh Assembly Government over provision for Wales in primary legislation the UK Government is also prepared to consider the transferring of additional functions to the National Assembly. For example, the Government is currently in discussion with the Welsh Assembly Government on the case for transferring further animal health powers to the Assembly to deal with all future outbreaks of animal disease in Wales.

There is a close working relationship between the UK Government and the Welsh Assembly Government at both ministerial and official levels. The majority of day-to-day relations are informal and on a bilateral basis. This is recognised in the Memorandum of Understanding and supplementary agreements first published in October 1999 and most recently revised in December 2001. The Memorandum of Understanding states that:

"The UK Government and the devolved administrations believe that most contact between them should be carried out on a bilateral or multi-lateral basis, between departments which deal on a day-to-day basis with the issues at stake. Nevertheless, some central co-ordination of the overall relationship is needed…. The UK Government and devolved administrations commit themselves, wherever possible, to conduct business through normal administrative channels, either at official or Ministerial level."

The Memorandum of Understanding is not legally binding; it simply sets out the principles that the UK Government and the devolved administrations intend should underlie relations between them. The Memorandum of Understanding commits all four administrations to the principles of:

• good communications, especially where the work of one administration may have some bearing upon the responsibilities of another administration;

• co-operation, where appropriate, on matters of mutual interest; and

• open access to scientific, technical and policy information, including statistics and research, subject to any appropriate safeguards each administration might wish to place on its use and the requirements of the Freedom of Information Acts.

The Memorandum of Understanding also provides for the establishment of the Joint Ministerial Committee. The Committee meets in plenary format at least once a year to review the operation of devolution. It is chaired by the Prime Minister (or his representative) and attended by the Deputy Prime Minister, the Heads of the devolved administrations, and the territorial Secretaries of State. Other Ministers attend as appropriate when issues relevant to their areas of responsibility are discussed. Its terms of reference are:

1. to consider non-devolved matters which impinge on devolved responsibilities, and devolved matters which impinge on non-devolved responsibilities;
2. where the UK Government and the devolved administrations so agree, to consider devolved matters if it is beneficial to discuss their respective treatment in the different parts of the United Kingdom;
3. to keep the arrangements for liaison between the UK Government and the devolved administrations under review; and
4. to consider disputes between the administrations.

To date, the Joint Ministerial Committee has met on three occasions in plenary format, in Edinburgh on 1 September 2000, in Cardiff on 30 October 2001 and in London on 22 October 2002. All three meetings reviewed the operation of the devolution settlement. The committee has also met in a number of subject formats to explore issues in greater depth. Over the past two and a half years, Ministers have held productive discussions on Europe, health and NHS modernisation, poverty and the knowledge economy. Functional committees are open to review, and Ministers are free to establish a committee on any subject they wish (although only a limited range of subjects are of interest to all four administrations).

The fact that no disputes have so far been referred to the Joint Ministerial Committee for resolution suggests that the existing system of inter-administration relations is working well. The Government believes that the system would be able to cope even in the event of strained relations, should that occur. In the UK tensions between local and central government have been commonplace, yet they have rarely required some form of formal "dispute resolution". Evidence from overseas suggests that even in countries where relations between one or more part of the state are strained, the ordinary business of government still gets done.

Devolution Guidance Note 4 explains the role of the Secretary of State. As primary legislation continues to be made in Westminster, the Secretary of State for Wales maintains a significant workload – on occasions in the form of separate Welsh Bills but more commonly leading on Wales-only clauses in England and Wales legislation. For the rest, his responsibilities are akin to those of the other territorial Secretaries of State. His overriding objective is to represent the UK Government in Wales and to represent Wales (not just the Assembly) in the Government. This requires Wales Office Ministers to answer for Wales regularly at Parliamentary Questions, in Welsh Grand Committee meetings, before the Welsh Affairs Committee and on other Parliamentary occasions. It also requires them to be members of around 20 Cabinet committees or sub-committees. Parliament votes the "Welsh Block" to the Secretary of State, who transfers funds to the Assembly after deducting the expenses of the Wales Office. Changes to the Block are consequential on changes to equivalent English programmes, calculated by the Barnett formula; details are set out in the Treasury’s Statement of Funding Policy. However, these changes do not bind the Assembly to expenditure on equivalent programmes; it is free to allocate funds within the Block according to its own priorities.

The Secretary of State meets the First Minister at least weekly, and he and the Parliamentary Secretary have regular meetings with other Assembly Ministers. The Secretary of State has a non-voting seat in the Assembly and is required by section 31 of the Government of Wales Act to attend once a year to present the Government’s legislative programme to the Assembly. The Parliamentary Secretary has by invitation attended Assembly Committees on a number of occasions.

In addition to this, section 41 of the Government of Wales Act allows for activities to be undertaken by either administration on behalf of the other through agency arrangements. For example, Assembly staff assist Wales Office officials in supporting Wales Office Ministers during the passage of Wales-only legislation through Parliament.

The Office of the Deputy Prime Minister has the overall lead on devolution issues within the UK Government. The Deputy Prime Minister chairs the Cabinet Committee on the Nations and Regions. He is also a member of the Joint Ministerial Committee when it meets in plenary format. In taking forward these responsibilities, the Deputy Prime Minister is supported by the Devolution and Constitution Division, whose primary role is to manage overall relations with the devolved administrations and oversee the operation of devolution. This includes:

• ensuring that the exchange of information between administrations is adequate;

• helping to resolve bilateral problems;

• where necessary, ensuring liaison between the UK Government and the devolved administrations on issues cutting across departmental boundaries;

• maintaining an overview of the workings of the devolution arrangements, including the concordats and the resolution of disputes arising from them;

• servicing meetings of the Joint Ministerial Committee and its official counterpart; and

• providing a central source of guidance and expertise (including the suite of Devolution Guidance Notes already referred to).

As has been explained above, there are clear mechanisms for consulting the Assembly. However, they will only be effective if operated correctly. Getting this right has been a process of learning for both the UK Government and the Welsh Assembly Government. Although operation of these mechanisms has not always been perfect, the last meeting of the Joint Ministerial Committee in October agreed that steady progress was being made. It is important though, to ensure that as officials in UK Government departments and the Assembly who are familiar with operating devolution move on, their knowledge and experience are not lost to their successors.

The division of responsibility between the UK Government and the National Assembly does place some constraints on Whitehall policy making. However, the Government does not consider these constraints to be inappropriate; they are an intended consequence of devolution and allowing things to be done differently in different parts of the UK.

The Government has retained control over matters which affect devolved responsibilities in Wales, just as it has in Scotland and Northern Ireland. One obvious example is the social security and benefits system, which is best organised on a GB basis. It is inevitable that the administration of the social security and benefits system will impinge upon devolved responsibilities, for example for certain aspects of social policy. In such cases it is of course appropriate that the Assembly Government is both informed and consulted in accordance with the commitments in the Memorandum of Understanding. A further example is the Nationality, Immigration and Asylum Act 2002, for which the Home Office was responsible but which has had an impact on the Assembly’s responsibility for health and education. The Assembly Government was therefore fully consulted in the preparation of the legislation.

Furthermore, it should be noted that Westminster remains sovereign and, although for example, it will not normally legislate on matters that have been devolved to Scotland without the agreement of the Scottish Parliament, it retains the capacity to do so. (A parallel convention applies to primary legislation affecting Northern Ireland.) So while there are some constraints on Whitehall, which must act within the framework of the legislation passed by Parliament, there are no such constraints on Parliament.

Electoral Arrangements

The Government’s aim in establishing the electoral arrangements for the National Assembly for Wales, a form of the Additional Member System, was "a system of election that will enable all parts of Wales to be fairly represented". Arrangements for elections to the Scottish Parliament and Greater London Authority are very similar. The Government has also proposed that such arrangements should be used for directly-elected English Regional Assemblies. It is also worth noting that, in addition to establishing the Parliament, the Scotland Act proved for a reduction in the number of Scottish seats at Westminster, to take effect following the conclusion of the current boundary review.

Should changes ever be made to the composition or electoral arrangements for the Assembly, that would of course require legislation to amend the Government of Wales Act. It would also be necessary to consult the Electoral Commission and the Welsh Parliamentary Boundary Commission.

• Children’s Commissioner for Wales Act 2001
• Health (Wales) Bill 2002

• Care Standards Act 2000
• Countryside and Rights of Way Act 2000
• Local Government Act 2000
• Learning and Skills Act 2000
• Transport Act 2000
• Special Education Needs and Disability Act 2001
• Education Act 2002
• NHS Reform and Health Care Professions Act 2002
• Licensing Bill 2002
• Local Government Bill 2002
• Planning and Compulsory Purchase Bill 2002

1. This note sets out guidance for UK Government departments on consulting the Welsh Assembly Government on new legislation affecting the Assembly’s responsibilities. The UK Government has agreed with the Welsh Assembly Government that they will normally consult each other from an early stage on the development of relevant legislative proposals, in confidence where necessary (see Devolution Guidance Note 1 Common Working Arrangements, which should be read separately if you are unfamiliar with it, in particular paragraphs 31 to 34). This means that the Welsh Assembly Government should always be consulted on Bills which:

• confer new functions on the Assembly;
• alter the Assembly’s existing functions (including legislation on, for instance, freedom of information, which would affect the overall discharge of its duties and those of public bodies for which it is responsible); or
• otherwise affect areas which are the responsibility of the Assembly, including where it will be responsible for implementation in Wales, though policy control remains with the UK Government.

Departments should make clear when information is being passed in confidence. There is no absolute need to consult the Welsh Assembly Government on other Bills, although departments might find this useful in some circumstances and the Welsh Assembly Government might likewise wish to make representations about such matters itself.

3. Consistently with the separation of functions between LP on the one hand and policy committees, such as DA (Domestic Affairs), on the other, this note is not concerned with the process by which the Assembly Cabinet is consulted about policy. Arrangements for this are set out in the Memorandum of Understanding, the agreement on Common Working Arrangements (Devolution Guidance Note 1) and the various bilateral concordats between departments and their counterparts in the Assembly.

4. Section 31 of the Government of Wales Act 1998 places a duty on the Secretary of State for Wales to consult the Assembly after the beginning of each Session on the legislative programme and on non-programme Bills agreed for introduction subsequently (unless there are considerations relating to the Bill which make such consultation inappropriate). The duty includes one of personal attendance by the Secretary of State for Wales. It provides an opportunity to consider the content of individual Bills, in addition to the Government’s choice of priorities. More guidance on the role of the Secretary of State for Wales, including the role in relation to primary legislation, is given in Devolution Guidance Note 4 The Role of the Secretary of State for Wales.

6. Consultation with the Welsh Assembly Government can be facilitated if departments ensure that Bill material deals accurately with the Assembly and addresses certain common features of the devolution settlement. The annex to this note lists some of the main aspects of this. While this is not prescriptive, and is no substitute for detailed discussions, it should ensure that such discussions can focus on any substantive sticking points and are not dominated by relatively minor and technical matters.

• explain any provision proposed in respect of Wales which differs from the provision proposed for England or the rest of the UK;

• identify any exception to the general rule that a new function created by the Bill will pass to the Assembly in cases where it already exercises similar functions within that subject area and identify the policy clearance for that decision;

• identify any change to the existing functions of the Assembly, including any new function being vested in the Assembly which might raise issues of general principle, and the policy clearance for the change; and

• confirm that the Welsh Assembly Government has been consulted on the draft clauses as necessary (including commencement and other transitional provisions), summarise the Welsh Assembly Government’s view and indicate whether the Committee on the Nations and Regions or the Joint Ministerial Committee is likely to become involved (either in correspondence or through a meeting).

Office of the Deputy Prime Minister

Referring to the Assembly in primary legislation

The following checklist aims to cover some largely technical points in referring to the Assembly in Government Bills. It is neither exhaustive nor prescriptive. However, it should serve as a useful aide-mémoire for departments and should minimise the need for discussions with Assembly officials to be dominated by relatively minor issues such as these.

Nomenclature

• Parliamentary Counsel will judge on the most suitable way of referring to the Assembly in a Bill, for example by its formal title, "the National Assembly for Wales", or by a short title such as "the Assembly". However, the term "Welsh Assembly" is always to be avoided.

• The Government of Wales Act introduced a new definition of "Wales", expanding the Assembly's jurisdiction to include the sea around Wales to a distance of 12 nautical miles. Where a Bill confers functions on the Assembly which could be exercised in relation to the sea or to maritime activities, it should thus normally use the definition of Wales in s155 of the Government of Wales Act and orders made thereunder.

• Functions should normally be conferred on the Assembly as a whole, rather than on a named office-holder (such as the First Minister). It is for the Assembly to consider delegating any new functions it receives to the First Minister or to any other arm of the Assembly.
  
• Commencement provisions in a Bill (i.e. the means by which it comes into force) should normally apply on equal terms to England and Wales, and to Ministers and the Assembly. Again, proposed departures from these two presumptions (for example, if there is a good case for a common implementation date) should be discussed at an early stage in the pre-legislative process.

• While it remains possible to confer functions on the Assembly by means of a transfer Order under s22 of the Government of Wales Act, new functions should normally be conferred directly on the Assembly by primary legislation. To do otherwise can increase the amount of parliamentary time needed (by requiring it to consider the order as well as the Bill) and potentially misleads as to the Government's intentions (since Parliament will assume the functions are not being conferred on the National Assembly).
  

• The Assembly's procedures as regards subordinate legislation are not the same as Parliament's: in particular, subordinate legislation cannot routinely be made in the Assembly using a negative procedure. Bills should thus not seek to prescribe the procedures for making Assembly subordinate legislation, and provisions applying Parliamentary procedures to subordinate legislation made by Ministers should not extend to the Assembly.

• A Bill should not normally subject the actions of the Assembly to Ministerial consent or approval (or vice versa), apart from certain functions which require the consent of HM Treasury. Exceptions to this should be explored as early as possible in the pre-legislative process.

• Where there is a requirement for Ministers to consult the Assembly before acting (or vice versa), this should be included in legislation rather than in a concordat.

• Where the Assembly will be wholly or partly responsible for public bodies and offices, these should have statutory titles in Welsh and English (e.g. "There shall be a [title of body in English] or [title of body in Welsh]". Assembly officials will be able to advise on a suitable translation into Welsh.

• A new public office should only disqualify its holder from membership of the Assembly where that would cause an unavoidable conflict of interest with the Assembly's responsibilities. Disqualification from membership of the House of Commons does not always give rise to disqualification from the Assembly (s12, Government of Wales Act). Disqualification should generally be left to an Order under s12(1)(b) of the Government of Wales Act.

• New public bodies which fall solely under the Assembly's control should normally be subject to its general powers to reform public bodies in Wales (ss27&28 and Sch.4, Government of Wales Act). A Bill should also normally provide for records of such a body to be Welsh public records (ss116-118, Government of Wales Act).

• Consideration should always be given as to whether a new public body or office-holder should be subject to the Assembly’s powers of summons (s74 and Sch.5, Government of Wales Act). Generally speaking subjection to these powers will be appropriate in cases where the Assembly might reasonably require information from a public body or office-holder to carry out its executive functions (i.e. when there is reasonable common ground between the body’s responsibilities and those of the Assembly).

• Where the Assembly is to be wholly responsible for a new body, it should have the power to determine the form of that body's accounts, subject to Treasury consent.

• Bills should provide that the Auditor General for Wales (AGW), and not the Comptroller and Auditor General, is to be responsible for auditing the accounts of any body which reports solely to the Assembly.

• Where the AGW audits a body's accounts, s/he should also have the power to conduct "value for money" examinations into that body.

• Departments should copy to the Secretary of State or the Wales Office all correspondence between UK and Assembly Ministers and between senior officials, especially when it relates to primary legislation.

On 1 July 1999 most of the functions of the Secretary of State for Wales transferred to the National Assembly for Wales by Order in Council; other functions have been transferred by further Transfer of Functions Orders or conferred by primary legislation. Responsibility for primary legislation for Wales remains with Westminster, so it is not possible to distinguish between reserved and devolved matters as it is for Scotland; the distinction is between transferred and non-transferred functions. Virtually no executive functions remain with the Secretary of State for Wales; any functions not transferred to the Assembly are exercised in Wales by the lead UK department.

Following devolution, the role of the Secretary of State for Wales is to:

• act as guardian of the devolution settlement in Wales;

• ensure that the interests of Wales are fully taken into account by the UK Government in making decisions which will have effect in Wales;

• represent the UK Government in Wales; and
• oversee the progress through Parliament of primary legislation making separate provision for Wales.

This note considers some of the implications of that role for other departments.

This does not mean that the Secretary of State is a channel of communication between the UK Government and the Assembly. Normally departments should deal with the Welsh Assembly Government direct. The Secretary of State and the Wales Office will:

• give advice on the handling of business in the light of devolution;

• act as honest broker should there be any dispute between the Assembly and Whitehall or Westminster; and

• explain the nature and consequences of devolution to the Assembly on behalf of the UK Government.

It would be helpful if departments would copy to the Secretary of State or the Wales Office all correspondence between Ministers and Assembly Ministers and between senior officials.

The Secretary of State for Wales speaks for Wales in the UK Cabinet and ensures that decisions are taken with full regard to any matters where Wales has particular interests or concerns. The Secretary of State is not a mouthpiece for the Assembly but needs to know the views of the Welsh Assembly Government before coming to a view. This is particularly important in relation to proposals for primary legislation that affect Wales – see DGN 9 Post Devolution Primary Legislation Affecting Wales, available from the Office of the Deputy Prime Minister.

Bearing this in mind, it is essential if there is to be no delay in reaching decisions that Welsh Assembly Government officials and Ministers are consulted at an early stage in the development of policy. Any necessary consultation of Assembly members must, of course, wait until the proposals are made public.

Colleagues are asked therefore:

• that officials should take soundings of Assembly officials as soon as possible. If these indicate that there may be clauses in the legislation dealing specifically with Wales or particular issues relating to Wales, officials in the Wales Office should be alerted.

• that whenever possible the relevant Assembly Minister should be asked for his or her views on a proposal at the same time as policy clearance is sought from Cabinet colleagues. It would not be appropriate for the Assembly Cabinet to be aware of internal UK Cabinet discussions, so the most useful way of achieving this is to write to the Assembly Minister in similar terms asking for comments rather than agreement. However, in setting deadlines, colleagues should recognise that the Secretary of State for Wales will wish to know the Assembly Government’s view before he himself responds to Cabinet colleagues, whether or not he supports that view.

While this is particularly important for proposals for primary legislation, the principle should be applied to any Government initiative that affects Wales.

None of this affects the Secretary of State’s duty under the Government of Wales Act 1998 to consult the Assembly on the Government’s legislative programme. This clearly means consultation with Assembly Members and will be carried out in a formal and public way. However if there has been adequate consultation with the Welsh Assembly Government, the consultation with the Assembly as a whole is less likely to raise issues which have to be addressed during the passage of legislation.

It is the responsibility of the Secretary of State to steer through Parliament any clauses in legislation relating solely to Wales. Such clauses will have been included at the request of the Welsh Assembly Government, with the agreement of the lead Minister, the Secretary of State and Cabinet colleagues. However, the Secretary of State is not in a position to draft instructions to Counsel; that is for the lead Department’s Bill team after consulting Assembly officials and lawyers. It would not be appropriate for Parliamentary Counsel to take instructions direct from Assembly lawyers but the most effective way of operating has proved to be for Assembly lawyers to provide a draft of instructions for the lead Department to approve and then pass on to Parliamentary Counsel.

10. During the passage of a Bill through Parliament, the Secretary of State’s officials will commission appropriate support; this could be from the Assembly or from the lead Department. It should be noted that with one junior Minister and an interest in most Bills, the Wales Office will need to look for flexibility in membership of standing Committees.

11. With the agreement of colleagues, the Secretary of State has always presented the UK Government’s policy on matters that are of significance to Wales even if lead responsibility is formally with another colleague. This should remain the case for issues which have not been devolved but in which the Assembly has a strong interest either because matters which are its responsibility are affected by UK Government actions – e.g. negotiations with Europe on the Assisted Areas map, Structural Funds and the CAP – or because it has responsibility for implementing all or part of UK policies – e.g. New Deal and Social Inclusion.

12. If colleagues are making announcements on non-devolved matters which will have a major effect in Wales, they should consider how the Secretary of State for Wales should present the policy in Wales. There are various possibilities:

• Joint announcements/consultations. If this is appropriate, the timetable must allow for them to be bi-lingual in Wales.

• The Secretary of State for Wales formally to consult the Assembly on behalf of the UK Government by sending them the document prepared by the lead Department.

• The Secretary of State to make a parallel announcement to the Welsh media focusing on the effect in Wales.

Colleagues should also be aware that, while Welsh Assembly Government officials are able to give the Secretary of State factual briefing under the concordat with the Wales Office, they are not in a position to provide him with the UK Government line to take. Wales Office officials will need to call on UK colleagues for this in a variety of circumstances, such as parliamentary questions, speeches, briefing for meetings, replies to MPs and members of the public etc.