Part 1: Constitutional Arrangements Chapter 3: Legislative competence Section 3: Legislative competence
Section 3(1) replaces current section 108 of GoWA with a new section 108A. The new section sets out the limits on the legislative competence of the Assembly.
	Subsections (1)-(7) of new section 108A define how the legislative competence of provisions in Assembly Acts is to be assessed.
	Subsection (1) of new section 108A provides that an Act of the Assembly is not law so far as any of its provisions is outside the legislative competence of the Assembly.
	Subsection (2) of new section 108A sets out that a provision in an Assembly Act is outside competence if any one of the paragraphs (a)-(e) apply. There are five separate and independent tests for an Assembly Act provision to satisfy before it will be within competence. If any one of the following five paragraphs applies to an Assembly Act provision, it will be outside competence. Flowcharts 1 and 2 at Annex B below explain further how the five tests in paragraphs (a)-(e) are to be applied.
Paragraph (a) provides that an Assembly Act provision will be outside competence if it extends beyond England and Wales. In other words, an Assembly Act provision cannot form part of a legal system other than the unified jurisdiction of England and Wales.
Paragraph (b) provides that an Assembly Act provision will be outside competence if it applies otherwise than in relation to Wales or confers, imposes, modifies or removes functions exercisable otherwise than in relation to Wales. However, new subsections (3), (4), (5) and (7) together make up the exception to paragraph (b), whereby an Assembly Act provision can apply otherwise than in relation to Wales. See below for further explanation of these subsections.
Paragraph (c) provides that an Assembly Act provision will be outside competence if it relates to any of the reserved matters, as set out in Schedule 7A, having regard to the exceptions listed in that Schedule. "Relates to" is to be interpreted in accordance with the purpose test (see subsection (6)).
Paragraph (d) provides that an Assembly Act provision will be outside competence if it breaches any of the restrictions set out in Part 1 of Schedule 7B, subject to the exceptions in Part 2 of Schedule 7B. It is important not to conflate this paragraph (d) test with the separate test in paragraph (c) above. For example, even though an Assembly Act provision may satisfy paragraph (c) by not relating to a reserved matter, it may nevertheless be outside competence by breaching the restrictions in Schedule 7B. Each of the five tests of legislative competence in paragraphs (a)-(e) are to be applied independently of each other.
Paragraph (e) provides that an Assembly Act provision will be outside competence if it is incompatible with the Convention rights or with EU law.
	Subsection (3) of new section 108A provides an exception to new subsection (2)(b) so that an Assembly Act provisions can apply otherwise than in relation to Wales if it:
is ancillary (defined in new subsection (7)) to a provision in an Assembly Act or Measure or to a "devolved provision" (defined in subsection (4) below) in an Act of Parliament; and
has no greater effect otherwise than in relation to Wales than is necessary to give effect to the purpose of that provision.
	"Wales" is defined in section 158(3) of GoWA and does not include the Welsh zone beyond the territorial sea.. An Assembly Act provision will need to satisfy the test in section 108A(3) before it can apply beyond Wales.
	Subsection (4) provides that, for the purposes of subsection (3)(a), a "devolved provision" in an Act of Parliament is one that would be within the Assembly's legislative competence. However, in applying this test, paragraphs 8, 10 and 11 of Schedule 7B are to be ignored. Paragraphs 8, 10 and11 require Secretary of State or Treasury consent for Assembly Act provisions that alter certain reserved authorities' functions. Such consent would never be required for an Act of Parliament which is why paragraphs 8, 10 and 11 of Schedule 7B are to be ignored when assessing whether a provision in an Act of Parliament would be within the Assembly’s legislative competence.
	Subsection (5) of new section 108A clarifies that, in determining what is "necessary" for the purposes of subsection (3)(b), it is not relevant that the UK Parliament could itself have enacted the provision.
	Subsection (6) of new section 108A includes the so-called 'purpose test', which provides that, for the purposes of subsection (2)(c), the question of whether an Assembly Act provision "relates to" a reserved matter, is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
	Subsection (7) of new section 108A defines "ancillary" for the purposes of GoWA. The term "ancillary" is used in section 108A(3)(a) (as inserted by section 3) and paragraphs 2(1)(a) and 5(4)(b) of Schedule 7B (as inserted by Schedule 2). The definition is based on the wording that was previously in section 108(5) of GoWA. A provision is considered ancillary to another if it:
provides for the enforcement of the other provision, or is otherwise appropriate for making that provision effective, or
is otherwise incidental to, or consequential on, that provision.
	Section 3(2) replaces Schedule 7 to GoWA with new Schedules 7A and 7B. Schedules 7A and 7B are as set out in Schedules 1 and 2 to the Act respectively.