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Localism Bill (HL Bill 100)

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that falls to be excluded from the lump sum by virtue of section 50(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 final
5notice (disregarding any amount that falls to be excluded from any of
those payments by virtue of section 50(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
10other 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 50(2).

(5) 15The 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 a Minister of the Crown gives
the authority a notice under this subsection terminating the requirement or
varying it so as to make it less onerous for the authority.

(6) 20A notice under subsection (5) may be given, either on the application of the
authority or without such an application, where a Minister of the Crown
considers 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) 25A Minister of the Crown 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) 30if the authority has mixed 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) a Minister of the
35Crown 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).

57 Interpretation of Part: general

In this Part—

  • 40“act” includes omission;

  • “the appropriate national authority”, in relation to a public authority with
    mixed functions, has the meaning given by section 51(8);

  • “Article 260(2) proceedings” has the meaning given by section 48(5)(c);

  • “Court of Justice” means the Court of Justice of the European Union;

  • 45EU financial sanction” has the meaning given by section 48(5)(a);

  • “final notice” means a notice under section 56;

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  • “functions”, “non-devolved functions” and “devolved functions” are to be
    construed in accordance with section 51;

  • “infraction of EU law”, in relation to an EU financial sanction, has the
    meaning given by section 48(5)(b);

  • 5“Minister of the Crown” has the same meaning as in the Ministers of the
    Crown Act 1975;

  • “periodic payment”, in relation to an EU financial sanction that is or
    includes a penalty payment, means a payment due under the terms of
    the penalty payment;

  • 10“public authority” has the meaning given in section 51(2);

  • “public authority with mixed functions” has the meaning given by section
    51(7);

  • “warning notice” means a notice under section 54.

Part 3 15EU fines: Wales

58 Power to require Welsh public authorities to make payments in respect of
certain EU financial sanctions

(1) The Welsh Ministers may, in accordance with the provisions of this Part,
require Welsh public authorities to make payments of amounts determined by
20the Welsh Ministers in respect of an EU financial sanction to which this Part
applies.

(2) A requirement to make a payment under this Part—

(a) may only be imposed on a Welsh public authority if—

(i) the authority has been designated under section 62; and

(ii) 25the EU financial sanction concerned is one to which the
designation applies; and

(b) must be imposed by a notice given to the authority under section 66
(referred to in this Part as a final notice).

(3) If a final notice is registered in accordance with rules of court or any practice
30direction, it is enforceable in the same manner as an order of the High Court.

(4) Any sums paid by a Welsh public authority under this Part are to be paid into
the Welsh Consolidated Fund.

(5) In this Part—

(a) EU financial sanction” means a sanction consisting of a lump sum or
35penalty payment (or both) imposed by the Court of Justice in Article
260(2) proceedings for an infraction of EU law;

(b) “infraction of EU law”, in relation to an EU financial sanction, means
the failure to comply with a judgment of the Court of Justice given in
proceedings under Article 258 or 259 of the Treaty on the Functioning
40of the European Union; and

(c) “Article 260(2) proceedings” means proceedings under Article 260(2) of
that Treaty.

59 Duty of the Welsh Ministers to issue a policy statement

(1) The Welsh Ministers must publish a statement of policy with respect to—

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(a) the designation of Welsh public authorities under section 62;

(b) the imposition and variation of requirements to make payments under
this Part; and

(c) such other matters relating to the operation of the provisions of this
5Part as the Welsh Ministers may think appropriate to include in the
statement.

(2) The Welsh Ministers may from time to time revise and republish the statement
of policy required by this section.

(3) A revised statement of policy may include saving or transitional provisions
10relating to the continued application for any purpose of any provisions of an
earlier published version of the statement.

(4) The Welsh Ministers must consult such persons as the Welsh Ministers
consider appropriate before publishing, or revising and republishing, the
statement of policy required by this section.

(5) 15In exercising functions under this Part in relation to an EU financial sanction
which has been or may be imposed on the United Kingdom—

(a) the Welsh Ministers, and

(b) a panel established under section 63,

must have regard to the statement of policy most recently published under this
20section.

60 The EU financial sanctions to which Part 3 applies

(1) This Part applies to an EU financial sanction imposed on the United Kingdom
if—

(a) the sanction is imposed after the commencement of this Part, and

(b) 25the Welsh Ministers certify that this Part applies to the sanction.

(2) If a certificate under subsection (1)—

(a) specifies a part or parts of the EU financial sanction concerned, and

(b) states that this Part applies only to that part, or those parts, of the
sanction,

30this Part applies to the sanction as if it included only that part or those parts.

(3) A certificate under subsection (1)—

(a) may make specific provision about the application of this Part to any of
the following—

(i) the lump sum (if any) paid by the United Kingdom;

(ii) 35any periodic payment due from the United Kingdom under the
terms of the EU financial sanction before the certificate is given;
and

(iii) any future periodic payment that may fall due from the United
Kingdom under those terms; and

(b)
40must be given in such form and published in such manner as the Welsh
Ministers think fit.

(4) Any provision under subsection (3)(a)(iii) that is made in a certificate under
subsection (1) may be varied (including in relation to its effect in relation to any
periodic payment that has become due from the United Kingdom since the
45earlier certificate) by a further certificate under subsection (1).

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61 Meaning of “Welsh public authority” and related terms

(1) Subsections (2) to (5) define various terms used in this Part.

(2) “Welsh public authority” means—

(a) a council of a county or county borough in Wales; or

(b) 5any other person or body which has any Welsh devolved functions.

(3) References to functions are to functions of a public nature.

(4) References to Welsh devolved functions are to functions which are exercisable
in relation to Wales and could be conferred by provision falling within the
legislative competence of the National Assembly for Wales as defined in
10section 108 of the Government of Wales Act 2006.

(5) The “appropriate national authority”, in relation to a Welsh public authority
with any functions other than Welsh devolved functions, means the following
national authority or authorities (according to whichever one or more of the
following paragraphs apply to that Welsh public authority)—

(a) 15a Minister of the Crown, if the Welsh public authority has any functions
which are not devolved functions;

(b) the Scottish Ministers, if the Welsh public authority has any Scottish
devolved functions; and

(c) the relevant Northern Ireland Department, if the Welsh public
20authority has any Northern Ireland devolved functions.

(6) In subsection (5)(a) “devolved functions” means—

(a) Welsh devolved functions;

(b) Scottish devolved functions; or

(c) Northern Ireland devolved functions.

(7) 25In subsections (5) and (6)—

  • “Northern Ireland devolved functions” means functions which could be
    conferred by provision included in an Act of the Northern Ireland
    Assembly made without the consent of the Secretary of State (see
    sections 6 to 8 of the Northern Ireland Act 1998);

  • 30“Scottish devolved functions” means functions the exercise of which
    would be within devolved competence (within the meaning of section
    54 of the Scotland Act 1998).

62 Designation of Welsh public authorities

(1) The Welsh Ministers may by order designate a Welsh public authority for the
35purposes of this Part.

(2) The order must—

(a) specify the Welsh public authority by name;

(b) identify any EU financial sanction to which the designation applies;
and

(c) 40describe the activities of the authority which are covered by the
designation.

(3) The order may identify an EU financial sanction for the purposes of subsection
(2)(b) by—

(a) specifying an EU financial sanction that has been imposed on the
45United Kingdom;

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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) 5specifying 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) 10specifying 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
15those 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
20258 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) 25The 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
30come 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) 35a 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
40functions, the appropriate national authority.

(8) In sections 64 to 66 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.

63 Establishment of independent panel

(1) 45This section applies where—

(a) an EU financial sanction to which this Part applies has been imposed by
the Court of Justice; and

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(b) at least one Welsh public authority has been designated under section
62 and the EU financial sanction is one to which the designation
applies.

(2) The Welsh Ministers must establish a panel for the purpose of carrying out any
5functions 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
10Ministers 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 are not affected by a vacancy among its
15members.

(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
20its functions.

64 Warning notices

(1) Before a Welsh public authority which has been designated under section 62
can be required to make any payment under this Part in respect of an EU
financial sanction to which the designation applies—

(a) 25the 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
3065(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
35infraction 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
40payments) in respect of that financial sanction.

(3) The warning notice must also—

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

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

(c) if that sanction is or includes a penalty payment, specify the amount
45and frequency of any periodic payments that fall due from the United
Kingdom under the terms of the penalty payment (see subsection (8));

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(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 65(4) (which may include arrangements
for securing that matters arising under the notice are dealt together
5with 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) 10invite 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 65(4), including its response to any
15representations 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
20same 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) 25if 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) 30Before 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) 35consult 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
40following—

(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 60(2));
and

(b) 45the 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 60(2));

and the day specified for the purposes of paragraph (b) must be no later than
50the day on which the warning notice is given to the authority.

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(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) 5any periodic payment, or any part of a periodic payment, that falls to
be excluded from the EU financial sanction by virtue of section 60(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
65(4) are determined, give the authority—

(a) 10a 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
15subsection (9).

(11) A warning notice given to a Welsh public authority may be withdrawn at any
time before the matters mentioned in section 65(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) 20In this section and section 65 “the panel” means the panel established under
section 63 to deal with the EU financial sanction to which the notice relates.

65 Matters to be determined before a final notice is given

(1) This section applies where—

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

(b) 25the 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.

(3) The report—

(a) 30may 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) 35if 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) 40must 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
45infraction of EU law concerned and, in relation to any periodic

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payments mentioned in subsection (3)(c) of section 64, whether those
acts have continued and will continue to do so;

(b) the proportion of—

(i) the total amount of the sanction (as specified under subsection
5(3)(b) of that section), and

(ii) any periodic payments (as specified under subsection (3)(c) of
that section),

that, in the light of the acts of the authority which are determined to
have had or to be having an effect mentioned in paragraph (a), is to be
10regarded as reflecting the authority’s share of the responsibility for the
infraction of EU law concerned or, in relation to any such periodic
payments, 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) 15if so, what payment or payments the authority should make towards—

(i) the total amount of the sanction specified under subsection
(3)(b) of that section; and

(ii) any periodic payments specified under subsection (3)(c) of that
section; and

(e) 20when 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
25Welsh 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.

(6) Before making a final decision on the matters mentioned in subsection (4)(c),
30(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) 35if the authority has any functions other than Welsh devolved functions,
representations from the appropriate national authority.

66 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 65 to impose a requirement
40under 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
45(see subsection (4));

(c) describe the acts of the authority that the Welsh Ministers have under
section 65(4) determined—

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(i) caused or contributed to the infraction of EU law concerned, in
relation to the total amount of the sanction; or

(ii) are causing or contributing to the continuing infraction of EU
law concerned, in relation to any other periodic payments due
5from the United Kingdom;

and set out the reasons for that determination;

(d) summarise the other determinations made by the Welsh Ministers
under section 65(4) and set out the reasons for making them;

(e) specify the amount required to be paid by the authority towards the
10total 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 to be paid towards any periodic payment that falls
due from the United Kingdom and the time when that amount is to be
15paid (or, if the notice so provides, the time when two or more such
amounts are to be paid);

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

(3) In subsection (2)(b), (c) and (e) the “total amount of the sanction” means the
sum of the following—

(a) 20the 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 60(2));
and

(b) the total amount of the periodic payments (if any) which have fallen
25due from the United Kingdom on or before a day specified in the final
notice (disregarding any amount that falls to be excluded from any of
those payments by virtue of section 60(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) 30In subsection (2)(b) “future periodic payments” means periodic payments
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
35be excluded from the EU financial sanction by virtue of section 60(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
40varying 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) 45The 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