Detailed Commentary on Sections in Part 4 Referendum Section 108: Legislative competence
399.The purpose of this section and Schedule 7 is to set out the extent of the Assembly’s power to pass Acts. The section calls this the Assembly’s “legislative competence”. Its legislative competence may be altered by Her Majesty making an Order in Council under section 109.
400.Subsection (1) makes it clear that within the limitations imposed by the Act an Act of the Assembly can have the same effect as an Act of the UK Parliament.
401.The Assembly’s power to pass Acts will be limited to the legislative competence given to it by this Act, which may be modified by Order in Council.
402.Subsection (2) means that if an Act contains a provision which is outside the Assembly’s legislative competence, that provision has no legal effect.
403.Subsections (3) to (6) identify when a provision of an Act will be within the Assembly’s legislative competence.
404.It will only be within competence if it satisfies the criteria in either section 108(4) or 108(5), and it complies with section 108(6).
405.In order to satisfy the criteria in section 108(4):
406.In order to satisfy the criteria in section 108(5):
407.In order to comply with section 108(6):
408.Subsection (7) lays down the test to be used to decide whether a particular provision in an Act of the Assembly relates to a subject listed under any of the headings in Part 1 of Schedule 7, and does not fall within any of the exceptions.
409.The correct approach will be to consider the purpose of the provision having regard to its effect in all the circumstances.