12244.44-50

Session 2010 - 12
Internet Publications
Other Bills before Parliament

Lords Amendments to the Localism Bill

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(b)
specifying any Article 260(2) proceedings that have been

commenced and providing that the designation is to apply to any

EU financial sanction that may be imposed on the United Kingdom

in those proceedings;

(c)
specifying a judgment of the Court of Justice finding that the United

Kingdom has failed to comply with an EU obligation and providing

that the designation is to apply to any EU financial sanction that

may be imposed on the United Kingdom for failing to comply with

that judgment; or

(d)
specifying or describing any proceedings under Article 258 or 259

of the Treaty on the Functioning of the European Union that have

been or may be commenced and providing that the designation is

to apply to any EU financial sanction that may be imposed on the

United Kingdom for failing to comply with a judgment of the Court

of Justice given in those proceedings.

(4)
The order may, for the purposes of subsection (3)(d), describe any

proceedings under Article 258 or 259 that may be commenced by reference

to the subject-matter of—

(a)
a Reasoned Opinion addressed to the United Kingdom under

Article 258 or 259 (as the case may be); or

(b)
any other document sent to the Government of the United

Kingdom by the Commission of the European Union or by another

member State which gives notice to the Government of the

possibility of proceedings being commenced against the United

Kingdom.

(5)
The activities described for the purposes of subsection (2)(c) must be

activities of the Welsh public authority which—

(a)
are carried out in the exercise of Welsh devolved functions of the

authority; and

(b)
take place after the provisions of the order describing the activities

come into force.

(6)
The following may not be designated under this section—

(a)
the National Assembly for Wales;

(b)
a Minister of the Crown or a United Kingdom government

department;

(c)
a member of the Welsh Assembly Government;

(d)
a court or tribunal.

(7)
Before making an order designating a Welsh public authority the Welsh

Ministers must consult—

(a)
the authority concerned; and

(b)
if the authority concerned has any functions other than Welsh

devolved functions, the appropriate national authority.

(8)
In sections (Warning notices) to (Final notices) references to “acts”, in relation

to a Welsh public authority which has been designated under this section,

are to acts within a description of activities covered by the designation.”
90
Insert the following new Clause—

“Establishment of independent panel (No. 2)

(1)
This section applies where—

45

(a)
an EU financial sanction to which this Part applies has been

imposed by the Court of Justice; and

(b)
at least one Welsh public authority is the subject of a designation

order under section (Designation of Welsh public authorities) which

applies to that EU financial sanction.

(2)
The Welsh Ministers must establish a panel for the purpose of carrying out

any functions it may be given by or under any provision of this Part in

relation to that EU financial sanction.

(3)
The panel must be established before any warning notice is given to a

Welsh public authority in relation to that EU financial sanction.

(4)
The panel is to consist of one or more individuals appointed by the Welsh

Ministers who appear to the Welsh Ministers to have suitable

qualifications, expertise or experience to carry out their duties.

(5)
The Welsh Ministers may invite nominations for appointment to the panel

from such organisations as the Welsh Ministers consider appropriate.

(6)
The validity of any acts of the panel is not affected by a vacancy among its

members.

(7)
The Welsh Ministers may pay to a member of the panel such fees,

allowances or expenses as the Welsh Ministers may determine.

(8)
The Welsh Ministers may provide such staff, accommodation or other

facilities as the Welsh Ministers may consider necessary to enable the panel

to carry out its functions.”
91
Insert the following new Clause—

“Warning notices

(1)
Before a Welsh public authority which has been designated under section

(Designation of Welsh public authorities) can be required to make any

payment under this Part in respect of an EU financial sanction to which the

designation applies—

(a)
the Welsh Ministers must give a warning notice under this section

to the authority;

(b)
the procedures set out in the warning notice (with any changes

made under subsection (9)) must be followed; and

(c)
the Welsh Ministers must determine the matters mentioned in

section (Matters to be determined before a final notice is given (No. 2))(4).

(2)
A warning notice is a notice stating that the Welsh Ministers, having regard

to the judgment of the Court of Justice imposing the EU financial sanction,

believe—

(a)
that acts of the authority may have caused or contributed to the

infraction of EU law for which the EU financial sanction was

imposed; and

(b)
that, if acts of the authority did cause or contribute to that infraction

of EU law, it would be appropriate to consider requiring the

authority to make payments under this Part (which may be or

include ongoing payments) in respect of the EU financial sanction.

(3)
The warning notice must also—

(a)
identify the EU financial sanction to which the notice relates;

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(b)
specify the total amount of that sanction (see subsection (7));

(c)
if that sanction is or includes a penalty payment, specify the amount

and frequency of any periodic payments that fall due from the

United Kingdom under the terms of the penalty payment (see

subsection (8));

(d)
set out the reasons for making the statement required by subsection

(2);

(e)
set out the proposed procedures and arrangements for determining

the matters mentioned in section (Matters to be determined before a

final notice is given (No. 2))(4) (which may include arrangements for

securing that matters arising under the notice are dealt together

with matters arising under other warning notices given to other

Welsh public authorities in respect of the same EU financial

sanction);

(f)
propose a timetable for those procedures and for any steps to be

taken by the panel or the Welsh Ministers before any requirement

to make a payment can be imposed on the authority;

(g)
invite the authority to make representations to the Welsh Ministers

about the matters mentioned in paragraphs (e) and (f);

(h)
invite the authority to make representations to the panel (with any

supporting evidence) about anything the authority considers

relevant to the matters mentioned in section (Matters to be

determined before a final notice is given (No. 2))(4), including its

response to any representations made (and any supporting

evidence submitted) to the panel —

(i)
by the Welsh Ministers (whether in relation to matters

arising from the notice or matters arising from any other

warning notice given to another Welsh public authority in

relation to the same EU financial sanction);

(ii)
by another Welsh public authority which has been given a

warning notice in relation to the same EU financial sanction;

or

(iii)
by the appropriate national authority in response to an

invitation under paragraph (j) included in the notice; and

(j)
if the authority has any functions other than Welsh devolved

functions, invite the appropriate national authority to make

representations about anything contained in or arising from the

notice.

(4)
The warning notice may contain such other information as the Welsh

Ministers consider appropriate.

(5)
Before giving a warning notice to the authority, the Welsh Ministers must

consult the panel as to the contents of the notice (including in particular the

proposed procedures and timetable mentioned in subsection (3)(e) and (f)).

(6)
If the authority has any functions other than Welsh devolved functions, the

Welsh Ministers must—

(a)
consult the appropriate national authority before deciding to give a

warning notice to the authority; and

(b)
give the appropriate national authority a copy of any warning

notice the Welsh Ministers decide to give.

(7)
In subsection (3)(b) the “total amount of the sanction” means the sum of the

following—

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(a)
the amount of the lump sum (if any) due from the United Kingdom

under the terms of the EU financial sanction (disregarding any

amount that falls to be excluded from the lump sum by virtue of

section (The EU financial sanctions to which Part (EU financial

sanctions: Wales) applies)(2)); and

(b)
the total amount of the periodic payments (if any) which have fallen

due from the United Kingdom on or before a day specified in the

notice (disregarding any amount that falls to be excluded from any

of those payments by virtue of section (The EU financial sanctions to

which Part (EU financial sanctions: Wales) applies)(2));


and the day specified for the purposes of paragraph (b) must be no later

than the day on which the warning notice is given to the authority.

(8)
The periodic payments to be taken into account for the purposes of

subsection (3)(c) do not include—

(a)
any periodic payment taken into account in calculating the total

amount of the sanction for the purposes of subsection (3)(b); or

(b)
any periodic payment, or any part of a periodic payment, that falls

to be excluded from the EU financial sanction by virtue of section

(The EU financial sanctions to which Part (EU financial sanctions: Wales)

applies)(2).

(9)
The Welsh Ministers may, after considering any representations made by

the authority under subsection (3)(g) but before the matters mentioned in

section (Matters to be determined before a final notice is given (No. 2))(4) are

determined, give the authority—

(a)
a notice stating any changes that the Welsh Ministers have decided

to make to the procedures or timetable as originally set out in the

warning notice under subsection (3)(e) and (f); and

(b)
a copy of the warning notice incorporating those changes.

(10)
The Welsh Ministers must consult the panel before making any changes

under subsection (9).

(11)
A warning notice given to a Welsh public authority may be withdrawn at

any time before the matters mentioned in section (Matters to be determined

before a final notice is given (No. 2))(4) are determined, but this does not

prevent another warning notice being given to the authority in relation to

the same EU financial sanction.

(12)
In this section and section (Matters to be determined before a final notice is given

(No. 2)) “the panel” means the panel established under section

(Establishment of independent panel (No. 2)) to deal with the EU financial

sanction to which the notice relates.”
92
Insert the following new Clause—

“Matters to be determined before a final notice is given (No. 2)

(1)
This section applies where—

(a)
a warning notice has been given to a Welsh public authority; and

(b)
the panel has considered all representations made to it under the

procedures set out in that notice.

(2)
The panel must make a report to the Welsh Ministers on the matters to

which the representations made to the panel relate.

48

(3)
The report—

(a)
may be published by the panel in such manner as the panel thinks

fit and, if not published by the panel, must be published by the

Welsh Ministers in such manner as they think fit;

(b)
must include recommendations as to the determination of the

matters mentioned in subsection (4)(a) and (b);

(c)
if the authority has made representations to the panel about

anything the authority considers relevant to any of the matters

mentioned in paragraphs (c) to (e) of subsection (4), must include

recommendations as to the determination of the matters mentioned

in those paragraphs; and

(d)
must include the panel’s reasons for any recommendations

included in the report.

(4)
After having had regard to the report, the Welsh Ministers must determine

the following matters—

(a)
whether any acts of the authority did cause or contribute to the

infraction of EU law concerned and, in relation to any periodic

payments, whether any acts of the authority have continued, and

will continue, to cause or contribute to the continuation of that

infraction;

(b)
the proportion of—

(i)
the total amount of the sanction (being the amount to be

specified under section (Final notices)(2)(b) if a final notice is

given), and

(ii)
any periodic payments not included in that total amount

(including both payments that have fallen due since the date

specified under section (Warning notices)(7)(b) and future

periodic payments),


that, in the light of the acts of the authority which are determined to

be relevant for the purposes of paragraph (a), is to be regarded as

reflecting the authority’s share of the responsibility for the

infraction of EU law concerned or, in relation to a periodic payment

mentioned in sub-paragraph (ii), the continuing infraction of EU

law concerned;

(c)
whether the authority should be required to make any payment or

payments in respect of the EU financial sanction;

(d)
if so, what payment or payments the authority should make

towards—

(i)
the total amount of the sanction referred to in paragraph

(b)(i); and

(ii)
any periodic payments referred to in paragraph (b)(ii); and

(e)
when any such payment or payments should be made.

(5)
In determining the matters mentioned in subsection (4)(c), (d) and (e) the

Welsh Ministers must have regard to—

(a)
the effect on the authority’s finances of any amount it may be

required to pay and in particular, if the authority has any functions

other than Welsh devolved functions, the need to avoid any

prejudicial effect on the performance by the authority of those other

functions;

(b)
the determination under subsection (4)(b); and

(c)
any other relevant considerations.

49

(6)
Before making a final decision on the matters mentioned in subsection

(4)(c), (d) and (e), the Welsh Ministers must invite—

(a)
representations from the authority about the potential effect on its

finances and, if it has any functions other than Welsh devolved

functions, the effect on those other functions of any amount it may

be required to pay; and

(b)
if the authority has any functions other than Welsh devolved

functions, representations from the appropriate national

authority.”
93
Insert the following new Clause—

“Final notices

(1)
The Welsh Ministers may give a final notice to a Welsh public authority

only if they have decided in accordance with section (Matters to be

determined before a final notice is given (No. 2)) to impose a requirement under

this Part on the authority.

(2)
The final notice must—

(a)
identify the EU financial sanction to which the notice relates;

(b)
specify the total amount of the sanction (see subsection (3)) and,

where relevant, the amount and frequency of any future periodic

payments (see subsection (4));

(c)
describe the acts of the authority that the Welsh Ministers have

under section (Matters to be determined before a final notice is given

(No. 2))(4) determined—

(i)
have caused or contributed to the infraction of EU law

concerned; or

(ii)
have caused or contributed, or will continue to cause or

contribute, to the continuation of that infraction;


and set out the reasons for that determination;

(d)
summarise the other determinations made by the Welsh Ministers

under section (Matters to be determined before a final notice is given

(No. 2))(4) and set out the reasons for making them;

(e)
specify the amount required to be paid by the authority towards the

total amount of the sanction and when it is to be paid (and if it is to

be paid in instalments, the instalments and the date on which they

become payable);

(f)
specify the amount or proportion required to be paid towards any

future periodic payment (as defined for the purposes of paragraph

(b)) and the time when that amount is to be paid (or, if the notice so

provides, the time when two or more such amounts are to be paid);

and

(g)
specify how and to whom payments are to be made.

(3)
In subsection (2)(b) and (e) the “total amount of the sanction” means the

sum of the following—

(a)
the amount of the lump sum (if any) due from the United Kingdom

under the terms of the EU financial sanction (disregarding any

amount that falls to be excluded from the lump sum by virtue of

section (The EU financial sanctions to which Part (EU financial

sanctions: Wales) applies)(2)); and

(b)
the total amount of the periodic payments (if any) which have fallen

due from the United Kingdom on or before a day specified in the

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final notice (disregarding any amount that falls to be excluded from

any of those payments by virtue of section (The EU financial

sanctions to which Part (EU financial sanctions: Wales) applies)(2));


and the day specified for the purposes of paragraph (b) must be no later

than the day on which the final notice is given to the authority.

(4)
In subsection (2)(b) “future periodic payments” means periodic payments

due from the United Kingdom other than—

(a)
any periodic payment taken into account in calculating the total

amount of the sanction; or

(b)
any periodic payment, or any part of a periodic payment, that falls

to be excluded from the EU financial sanction by virtue of section

(The EU financial sanctions to which Part (EU financial sanctions: Wales)

applies)(2).

(5)
The requirement to make payments towards periodic payments falling due

from the United Kingdom after the notice is given continues so long as

those periodic payments continue to fall due, unless the Welsh Ministers

give the authority a notice under this subsection terminating the

requirement or varying it so as to make it less onerous for the authority.

(6)
A notice under subsection (5) may be given, either on the application of the

authority or without such an application, where the Welsh Ministers

consider it appropriate in the light of a change in the circumstances which

applied when the final notice was given or when it was last varied (as the

case may be).

(7)
The Welsh Ministers may—

(a)
consult the panel, or refer any matter relating to the possible

termination or variation of the requirement for its advice or

recommendations;

(b)
invite the authority to make representations; and

(c)
if the authority has any functions other than Welsh devolved

functions, invite the appropriate national authority to make

representations,


before deciding whether to terminate or vary the requirement mentioned

in subsection (5).

(8)
If the authority makes an application under subsection (6) the Welsh

Ministers may by notice to the authority suspend the requirement until

further notice (but this does not affect the liability to make any payment

once the suspension is ended, unless the final notice is varied to have that

effect).”
94
Insert the following new Clause—

“Interpretation of Part: general

In this Part—

“act” includes omission;

“the appropriate national authority”, in relation to a Welsh public

authority with any functions other than Welsh devolved functions,

has the meaning given by section (Meaning of “Welsh public

authority” and related terms)(5);