Detailed Commentary on Sections in Part 3 Section 95: Legislative Competence : supplementary
340.This section provides a mechanism by which amendments may be made to Schedule 5 to the Act , so as to enhance, restrict or otherwise change the Assembly’s legislative competence to pass Assembly Measures. Amendments are made by Order in Council, which can:
341.A field cannot be added to Schedule 5 if it is one in which no functions are exercisable by the Welsh Ministers, the First Minister or the Counsel General.
342.An Order in Council amending Schedule 5 can also make changes to any enactment, including Acts of the Scottish Parliament and instruments made under those Acts, prerogative instruments, and other instruments or documents, where those changes are appropriate in connection with the amendment to Schedule 5.
343.Orders in Council under this section can make provisions which apply retrospectively (i.e., to things which have already been done). So, for example, this power could be used to clarify the extent of a matter in Part 1 of Schedule 5, where there has been a legal challenge to the validity of an Assembly Measure made in relation to that matter, and there is a need for legal certainty about the extent of the matter.
344.An Order in Council under this section may only be made if the draft of it has been approved by the Assembly, the House of Commons and the House of Lords. Thus Parliament retains control over the fields and matters in relation to which the Assembly has power to pass Measures.
345.Once a draft Order in Council has been approved by the Assembly, the First Minister must, as soon as reasonably practicable, send the Secretary of State written notice of that fact and a copy of the draft approved by the Assembly. The Secretary of State must then decide whether to lay the draft Order in Council before Parliament with a view to obtaining approval of the two Houses. The Secretary of State is not obliged to lay the draft before Parliament but if the Secretary of State does not do so before the end of 60 days (not counting days when Parliament is dissolved or prorogued or adjourned for more than four days) written notice of the reasons for refusing to do so must be given to the First Minister, who must then lay it before the Assembly. The Assembly must publish it.
346.Under subsection (10), if a change is made to Schedule 5, and thus to the Assembly’s legislative competence to pass Measures, the change is to have no effect upon Assembly Measures which have already been passed (or approved, in the case of Measures which have been reconsidered and amended) by the Assembly. So even if the powers of the Assembly were narrowed so as to remove the power to pass a particular Measure it would remain law. This is subject to the power to make retrospective provision in the Order in Council.