How power is exercised within the UK

Understanding Wales’s constitutional arrangements begins with understanding how power is divided and shared across the UK. Historically, all power in the UK vested in the Crown. The doctrine of the divine right of kings gave royal and political legitimacy to the idea of rule directly from the will of God. This meant that the Monarch was sovereign, holding supreme authority. Over the centuries, however, the Monarch’s power has been divided, shared and limited in many ways.

This process began most notably (in relation to England) with:

• Magna Carta in the 13th century, which limited the power of the Monarch 
• the Bill of Rights of 1688, which established certain rights of the (English) Parliament 

Most significant was the development of the concept of ‘Parliamentary sovereignty’. This provides that:

• Parliament can pass laws about any matter
• no Parliament can bind a future Parliament (in other words, a future Parliament may always change the law)
• a law passed by Parliament cannot be struck down by the courts: this is because there is no ‘higher’ constitutional law against which an Act of Parliament can be judged

See the Bill of Rights 1688 on legislation.gov.uk

See Magna Carta on the website of the National Archives

The fact that there is no written or codified constitution also means that there are no limits to Parliament’s power. There are no requirements for it to act in a particular way.

The UK Parliament makes laws by passing Acts of Parliament (also known as primary legislation). As well as changing the law by way of the Act itself, Acts of Parliament may also confer power on others to change the law. This includes:

• conferring power on Senedd Cymru, the Scottish Parliament and the Northern Ireland Assembly to make their own forms of primary legislation 
• conferring more limited power on Ministers to make ‘subordinate legislation’: this is normally by way of ‘statutory instrument’

Although the concept of Parliamentary sovereignty still applies, some consider that it is now limited – either in law or in practice. This is because of international agreements, or recognition of the will of the people of the historic nations of the UK (devolution of power).

Dividing power between legislatures, and giving powers to Ministers, has led to an enhanced role for the courts. The courts now more often play a role in adjudging where power lies and whether it has been exercised correctly.

The Government of Wales Act 2006 (the 2006 Act) established a newly constituted National Assembly for Wales as a fully-fledged legislature. It also established a separate executive. This executive was initially named the ‘Welsh Assembly Government’. Later, its name became simply the ‘Welsh Government’. Significantly, the 2006 Act gave the (then) National Assembly power to pass its own primary legislation. This was initially by ‘Assembly Measure’, under a system by which limited competence was conferred on a piecemeal basis. Competence was conferred either by a Legislative Competence Order or by an Act of Parliament. Then, following the referendum on further law-making powers in 2011, the Assembly passed its primary legislation by ‘Assembly Act’. It could do so on any matter conferred by what was then Schedule 7 to the Act. The National Assembly was renamed Senedd Cymru in May 2020, and Acts are now ‘Senedd Acts’.

The Wales Act 2017 amended the 2006 Act. Since the 2017 Act came into force, the extent of Senedd Cymru’s competence to legislate is set out in section 108A of the 2006 Act, and in Schedules 7A and 7B to the Act. Together, these set the parameters of legislative competence by referring to what the Senedd cannot do. This includes by listing subject matters that are reserved to the UK Parliament.

Parliamentary sovereignty means that the UK Parliament may legislate on matters not reserved to it (as well as on anything else). However, by convention (often referred to as the ‘Sewel Convention’), it will not normally do so except with the consent of Senedd Cymru. The Scotland Act 2016 and the Wales Act 2017 made provision reflecting this convention in law. They also introduced the notion of the permanence of the Scottish Parliament and Scottish Government, and of the Senedd and the Welsh Government, respectively. Although this suggests that devolution has limited the sovereignty of the UK Parliament, in the case of Miller, the Supreme Court held that the Sewel provisions are non-justiciable. This means that it considered that it was not possible for a court to decide on them. The court held that the Sewel Convention is nevertheless an important constitutional convention. It said that the convention plays a “fundamental role in the operation of our constitution”.

Like Acts of Parliament, Senedd Acts often confer powers on Ministers to make subordinate legislation. This is generally by Welsh statutory instrument. Senedd Acts also often confer powers on the Welsh Ministers (or other bodies) to issue guidance or codes of practice. These are sometimes referred to as ‘soft law’. They are often not legally binding but those to whom they are directed are usually required to take these into account.

When the UK was a member of the European Union, European law also impacted upon the power of Parliament. It also affected the powers of Ministers and the legislatures in Wales, Scotland and Northern Ireland. During this time, the laws of the EU were either directly applicable or, in the case of EU Directives, incorporated into UK law under what was then section 2 of the European Communities Act 1972. Under sections 80 and 108A of the 2006 Act, laws made in Wales also had to comply with European law. However, the relevant provisions in the 1972 Act and the 2006 Act have now been repealed and no longer apply.

The Human Rights Act 1998 gave “further effect to rights and freedoms guaranteed under the European Convention on Human Rights”. (See the introductory text to the Act). These are known as “Convention rights”. The 1998 Act has had a significant influence on both the content and interpretation of UK law. For example, so far as it is possible to do so, primary and secondary legislation must be read and given effect to in a way that is compatible with the Convention rights.

A Minister of the Crown who is in charge of a Bill in the UK Parliament must make a statement that the Bill is compatible with Convention rights. If the Minister is unable to confirm the Bill’s compatibility, a statement must be made to that effect. This would confirm that the government nevertheless wishes to proceed with the Bill. Where proceedings are brought that allege that an Act of Parliament, or a provision in an Act, is incompatible with a Convention right, this will be for the courts to determine. If the court determines it is incompatible, the court may make a declaration of that incompatibility.

Under sections 81 and 108A of the 2006 Act, laws made in Wales must not be incompatible with the Convention rights.

The UK has a common-law legal system. This means that, as well as statute law (laws made by the UK’s Parliaments and the Northern Ireland Assembly), it has a body of law that evolves over time. This evolves as it is ‘declared’ by judges when they decide legal proceedings in the courts. To find out what the common law is on a matter, it is necessary to study the judgments handed down in the courts. This is usually referred to as case law.

The doctrine of precedent helps to keep common law relatively coherent and predictable. Under the doctrine of precedent, a judge must normally follow earlier judgments on the same legal matter. In addition, a judge must follow an earlier judgment made by a higher court than the court in which he or she sits.

Historically, there was a separate strand of ‘judge-made’ law, known as the laws of equity. This was also developed through case law. However, the distinction between common law and the laws of equity is not often of practical significance today. Both sets of laws are administered alongside each other and thought of together as the common law of the UK.

There is not always a clear dividing line between common law and statute law. Statute law may relate to a matter for which there is no common law. On the other hand, a statute may replace the common law in an area, or supplement or vary the common law. In other words, both statute law and common law may apply to any given situation.

Law made in Wales includes both primary legislation and subordinate legislation. There is also case law that considers these. However, England and Wales currently remains a single legal jurisdiction. So, when judges declare points of common law, including about Welsh legislation, they determine the law for both England and Wales.