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Government of Wales Bill


Government of Wales Bill
Schedule 11 — Transitional provisions

166

 

(b)   

by such of the members of that Assembly as those members may

designate, if that person is not a member of that Assembly (or if the

office of Assembly First Secretary was vacant at that time).

      (3)  

A person designated for the purposes of sub-paragraph (2)(b) must inform

the Secretary of State of the designation as soon as is reasonably practicable.

5

      (4)  

Functions which are exercisable by virtue of sub-paragraph (2) may be

delegated by the person by whom they are exercisable (to such extent as that

person may determine) to any other member of the Assembly constituted by

the Government of Wales Act 1998 (c. 38).

      (5)  

Functions which—

10

(a)   

are exercisable by virtue of sub-paragraph (2), or

(b)   

are delegated under sub-paragraph (4),

           

may be delegated by the person by whom they are exercisable or to whom

they have been delegated (to such extent as that person may determine) to

members of the staff of the Assembly constituted by the Government of

15

Wales Act 1998.

      (6)  

Where a function is delegated under sub-paragraph (5), arrangements for

the exercise of the function are to be made by the person who, immediately

before the beginning of the initial period, was the Permanent Secretary to the

Assembly for the purposes of section 63(2) of Government of Wales Act

20

1998.

      (7)  

The delegation of any function under this paragraph does not prevent the

exercise of the function by the person by whom the delegation is made.

      (8)  

The exercise of any function in accordance with this paragraph is subject to

any condition, limitation or restriction which applied to the exercise of that

25

function immediately before the beginning of the initial period.

22    (1)  

This paragraph applies to functions of the Assembly constituted by the

Government of Wales Act 1998 which, immediately before the beginning of

the initial period, were delegated under section 62 of that Act to the

committee of the Assembly referred to in the standing orders made under

30

that Act as the House Committee.

      (2)  

Functions to which this paragraph applies are exercisable—

(a)   

by the person who, immediately before the beginning of the initial

period, held office as the presiding officer of the Assembly

constituted by the Government of Wales Act 1998, if that person is a

35

member of that Assembly, or

(b)   

by the person who, at that time, held the post referred to in the

standing orders made under that Act as the Clerk to the Assembly, if

the person mentioned in paragraph (a) is not a member of that

Assembly (or if the office of presiding officer was vacant at that

40

time).

      (3)  

Functions which are exercisable by virtue of sub-paragraph (2) may be

delegated by the person by whom they are exercisable (to such extent as that

person may determine) to members of the staff of the Assembly constituted

by the Government of Wales Act 1998.

45

      (4)  

Where a function is delegated under sub-paragraph (3), arrangements for

the exercise of the function are to be made by the person who, immediately

before the beginning of the initial period, was the Permanent Secretary to the

 

 

Government of Wales Bill
Schedule 11 — Transitional provisions

167

 

Assembly for the purposes of section 63(2) of Government of Wales Act

1998.

      (5)  

The delegation of any function under sub-paragraph (3) does not prevent

the exercise of the function by the person by whom the delegation is made.

      (6)  

The exercise of any function in accordance with this paragraph is subject to

5

any condition, limitation or restriction which applied to the exercise of that

function immediately before the beginning of the initial period.

23    (1)  

Where a function of making, confirming or approving subordinate

legislation is exercised during the initial period in accordance with

paragraph 21, it is to be made, confirmed or approved by being signed by

10

the person by whom the function is exercised.

      (2)  

Despite sub-paragraph (8) of paragraph 21, nothing contained in the

following provisions, or included in the standing orders of the Assembly

constituted by the Government of Wales Act 1998 (c. 38) by virtue of the

following provisions, applies to subordinate legislation made in accordance

15

with that paragraph—

(a)   

section 65 (regulatory appraisals),

(b)   

sections 66 and 67 (procedure), and

(c)   

section 68 (financial initiative).

      (3)  

But as soon as is reasonably practicable after the end of the initial period the

20

Clerk must lay before the Assembly every statutory instrument containing

subordinate legislation made, confirmed or approved in accordance with

paragraph 21.

Saving for existing instruments conferring or imposing functions

24    (1)  

Orders in Council under section 22 of the Government of Wales Act 1998

25

which are in force immediately before the commencement of the repeal of

that section by this Act continue to have effect despite the commencement of

that repeal (and may be varied or revoked accordingly).

      (2)  

Accordingly—

(a)   

the reference in paragraph 5 of Schedule 3 to section 58 of this Act

30

includes a reference to section 22 of the Government of Wales Act

1998, and

(b)   

the reference in paragraph 7(2) of that Schedule to an Order in

Council under section 58 of this Act which includes provision

transferring a function to the Welsh Ministers, the First Minister or

35

the Counsel General includes a reference to an Order in Council

under section 22 of the Government of Wales Act 1998 which

includes provision having that effect by virtue of this Schedule.

      (3)  

The references in sections 83 and 85 to an Order in Council under section 58

of this Act transferring a function to, or making a function exercisable by, the

40

Welsh Ministers, the First Minister or the Counsel General include a

reference to an Order in Council under section 22 of the Government of

Wales Act 1998 having that effect by virtue of this Schedule.

25         

Orders under section 27 of the Government of Wales Act 1998 which are in

force immediately before the commencement of the repeal of that section by

45

this Act continue to have effect despite the commencement of that repeal.

 

 

Government of Wales Bill
Schedule 11 — Transitional provisions

168

 

26    (1)  

Designations made under section 2(2) of the European Communities Act

1972 (c. 68) by virtue of subsection (1) of section 29 of the Government of

Wales Act 1998 (c. 38) which are in force immediately before the

commencement of the repeal of that subsection by this Act continue to have

effect despite the commencement of that repeal (and may be varied or

5

revoked accordingly).

      (2)  

Regulations made under section 56 of the Finance Act 1973 (c. 51) by virtue

of subsection (4) of that section which are in force immediately before the

commencement of the repeal of that subsection by this Act continue to have

effect despite the commencement of that repeal (and may be varied or

10

revoked accordingly).

First nomination of First Minister

27         

The reference in section 47(2)(a) to the holding of a poll at a general election

includes a reference to the holding of the poll at the 2007 election.

Transfer of Assembly functions

15

28    (1)  

Subject to paragraph 29, the relevant Assembly functions are transferred to

the Welsh Ministers immediately after the end of the initial period.

      (2)  

“The relevant Assembly functions” means functions exercisable by the

Assembly constituted by the Government of Wales Act 1998

(a)   

immediately before the beginning of the initial period, by virtue of an

20

Order in Council under section 22 of the Government of Wales Act

1998,

(b)   

immediately before the beginning of that period, as a result of a

designation made under section 2(2) of the European Communities

Act 1972 by virtue of subsection (1) of section 29 of the Government

25

of Wales Act 1998,

(c)   

as a result of having been conferred or imposed on it before the end

of the initial period by an enactment contained in an Act, other than

an enactment contained in the Government of Wales Act 1998, or by

a prerogative instrument, or

30

(d)   

as a result of having been conferred or imposed on it before the end

of the initial period by subordinate legislation (including

subordinate legislation made under the Government of Wales Act

1998).

29    (1)  

Her Majesty may by Order in Council provide for—

35

(a)   

the transfer of any of the relevant Assembly functions to—

(i)   

the First Minister, or

(ii)   

the Counsel General,

(b)   

the transfer of any of the relevant Assembly functions, other than

functions of making, confirming or approving subordinate

40

legislation, to the Assembly Commission, or

(c)   

any of the relevant Assembly functions, other than functions of

making, confirming or approving subordinate legislation, to be

functions of the Assembly.

      (2)  

Her Majesty may by Order in Council provide for any relevant Assembly

45

function that is a function of making, confirming or approving subordinate

legislation in relation to any matter not to be transferred to the Welsh

 

 

Government of Wales Bill
Schedule 11 — Transitional provisions

169

 

Ministers and, unless the Assembly already has power to pass Assembly

Measures in relation to that matter, amend Part 1 of Schedule 5 to enable the

Assembly to have such power instead.

      (3)  

Her Majesty may by Order in Council—

(a)   

direct that any function transferred by paragraph 28 is to be

5

exercisable by any one or more of the First Minister, the Counsel

General, the Assembly Commission and the Assembly concurrently

with the Welsh Ministers,

(b)   

direct that any function in relation to which provision is made by

virtue of sub-paragraph (1) for it to be transferred to, or continue to

10

be a function of, any person or body is to be exercisable by any other

person or body specified in that sub-paragraph concurrently with

that person or body, or

(c)   

direct that any function transferred by paragraph 28, or transferred

to the First Minister or the Counsel General by virtue of sub-

15

paragraph (1), is to be exercisable by the Welsh Ministers, the First

Minister or the Counsel General only with the agreement of, or after

consultation with, the Assembly Commission.

      (4)  

An Order in Council under this paragraph may make such modifications

of—

20

(a)   

any enactment (including any enactment comprised in or made

under this Act) or prerogative instrument, or

(b)   

any other instrument or document,

           

as Her Majesty considers appropriate in connection with the provision made

by the Order in Council.

25

      (5)  

No recommendation is to be made to Her Majesty in Council to make an

Order in Council under sub-paragraph (1) or (3) in relation to a function

which has already been transferred to the Welsh Ministers, the First Minister

or the Counsel General without the consent of those persons or that person

to the recommendation.

30

      (6)  

No recommendation is to be made to Her Majesty in Council to make an

Order in Council under sub-paragraph (2) unless a draft of the statutory

instrument containing the Order in Council has been laid before, and

approved by a resolution of, the Assembly; and a statutory instrument

containing an Order in Council under that sub-paragraph is subject to

35

annulment in pursuance of a resolution of either House of Parliament.

      (7)  

No recommendation is to be made to Her Majesty in Council to make an

Order in Council under this paragraph (apart from an Order in Council

under sub-paragraph (2)) unless a draft of the statutory instrument

containing the Order in Council has been laid before, and approved by a

40

resolution of, each House of Parliament.

      (8)  

But sub-paragraph (7) does not apply if the Assembly has resolved that a

recommendation should be made to Her Majesty in Council to make the

Order in Council.

30    (1)  

This paragraph applies so far as may be necessary for the purpose or in

45

consequence of the exercise of any functions of—

(a)   

the Welsh Ministers,

(b)   

the First Minister,

(c)   

the Counsel General,

 

 

Government of Wales Bill
Schedule 11 — Transitional provisions

170

 

(d)   

the Assembly Commission, or

(e)   

the Assembly constituted by this Act,

           

which are made exercisable by them by or by virtue of paragraph 28 or 29.

      (2)  

Any relevant reference to the Assembly constituted by the Government of

Wales Act 1998 (c. 38) is to be construed as being or including a reference

5

to—

(a)   

the Welsh Ministers,

(b)   

the First Minister,

(c)   

the Counsel General,

(d)   

the Assembly Commission, or

10

(e)   

the Assembly constituted by this Act,

           

(according to by whom the function in question is, or is to be, exercised).

      (3)  

In sub-paragraph (2) “relevant reference to the Assembly constituted by the

Government of Wales Act 1998” means—

(a)   

a reference in any enactment, prerogative instrument or other

15

document to that Assembly or,

(b)   

a reference in any enactment or other document which, immediately

before the commencement of the repeal by this Act of section 43 of

the Government of Wales Act 1998, had effect as a reference to that

Assembly.

20

Functions transferred by Order in Council under section 22 of the Government of Wales Act

1998: Parliamentary and Assembly procedure

31    (1)  

This paragraph applies where—

(a)   

a function to make subordinate legislation was transferred to, or

made exercisable by, the Assembly constituted by the Government

25

of Wales Act 1998 by an Order in Council under section 22 of that

Act, and

(b)   

the function has been transferred to, or made exercisable by, the

Welsh Ministers, the First Minister or the Counsel General by or by

virtue of paragraph 28 or 29.

30

      (2)  

If, immediately before the coming into force of the provisions of the Order

in Council relating to the function, a provision of any of the descriptions

specified in sub-paragraph (3) applied to its exercise by a Minister of the

Crown—

(a)   

that provision does not apply to its exercise by the Welsh Ministers,

35

the First Minister or the Counsel General unless the case is one to

which sub-paragraph (6) applies, but

(b)   

(whether or not the case is one to which that sub-paragraph applies)

that provision has effect in relation to its exercise by the Welsh

Ministers, the First Minister or the Counsel General as if any

40

reference in it to Parliament or either House of Parliament were (or,

if it is such a case, included) a reference to the Assembly.

      (3)  

The descriptions of provision referred to in sub-paragraph (2) are—

(a)   

provision requiring any instrument made in the exercise of the

function, or a draft of any such instrument, to be laid before

45

Parliament or either House of Parliament,

 

 

Government of Wales Bill
Schedule 11 — Transitional provisions

171

 

(b)   

provision for the annulment or approval of any such instrument or

draft by or in pursuance of a resolution of either House of Parliament

or of each House, and

(c)   

provision prohibiting the making of any such instrument without

such approval.

5

      (4)  

If, immediately before the coming into force of the provisions of the Order

in Council relating to the function, a provision of either of the descriptions

specified in sub-paragraph (5) applied to its exercise by a Minister of the

Crown—

(a)   

that provision does not apply to its exercise by the Welsh Ministers,

10

the First Minister or the Counsel General unless the case is one to

which sub-paragraph (6) or (7) applies, but

(b)   

(whether or not the case is one to which either of those sub-

paragraphs applies) any instrument made in the exercise of the

function by the Welsh Ministers, the First Minister or the Counsel

15

General is (or, if it is such a case, is also) subject to the procedure in

the Assembly specified by the standing orders.

      (5)  

The descriptions of provision referred to in sub-paragraph (4) are—

(a)   

provision for any instrument made in the exercise of the function to

be a provisional order (that is, an order which requires to be

20

confirmed by Act of Parliament), and

(b)   

provision requiring any order (within the meaning of the Statutory

Orders (Special Procedure) Act 1945 (9 & 10 Geo. 6 c. 18)) made in

the exercise of the function to be subject to special parliamentary

procedure.

25

      (6)  

This sub-paragraph applies in any case if the instrument made in the

exercise of the function or (if provision specified in sub-paragraph (3)(a) or

(b) applied to a draft of an instrument made in the exercise of the function)

a draft of an instrument to be so made—

(a)   

contains subordinate legislation made or to be made by a Minister of

30

the Crown or government department (whether or not jointly with

the Welsh Ministers, the First Minister or the Counsel General),

(b)   

contains (or confirms or approves) subordinate legislation relating to

an English border area, or

(c)   

contains (or confirms or approves) subordinate legislation relating to

35

a cross-border body (and not relating only to the exercise of

functions, or the carrying on of activities, by the body in or with

respect to Wales or a part of Wales).

      (7)  

This sub-paragraph applies in any case if, immediately before the coming

into force of the provisions of the Order in Council relating to the function,

40

a provision of the description specified in sub-paragraph (5)(b) applied to an

instrument made in exercise of the function by a Minister of the Crown and

the Order in Council provided that—

(a)   

any order made by the Assembly constituted by the Government of

Wales Act 1998 (c. 38) in the exercise of the function, or

45

(b)   

any order so made in circumstances including those of the case,

           

is to be subject to special parliamentary procedure.

      (8)  

In this paragraph “make” includes confirm or approve and related

expressions (except “made exercisable”) are to be construed accordingly; but

an instrument (or draft) does not fall within sub-paragraph (6)(a) just

50

 

 

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Schedule 11 — Transitional provisions

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because it contains subordinate legislation made (or to be made) by the

Welsh Ministers, the First Minister or the Counsel General with the

agreement of a Minister of the Crown or government department.

Functions conferred or imposed by pre-commencement enactment: Parliamentary and

Assembly procedure

5

32    (1)  

This paragraph applies where—

(a)   

a function to make subordinate legislation was conferred or imposed

on the Assembly constituted by the Government of Wales Act 1998

(c. 38) by a pre-commencement enactment (“the Welsh function”),

(b)   

the Welsh function has been transferred to the Welsh Ministers, the

10

First Minister or the Counsel General by or by virtue of paragraph 28

or 29, and

(c)   

when the Welsh function was transferred, a Minister of the Crown

had the same or substantially the same function exercisable in

relation to England (“the corresponding function”).

15

      (2)  

If, immediately after the transfer of the Welsh function, a provision of any of

the descriptions specified in sub-paragraph (4)—

(a)   

applied to the exercise of the corresponding function by the Minister

of the Crown, but

(b)   

did not apply to the exercise of the Welsh function by the Welsh

20

Ministers, the First Minister or the Counsel General,

           

the provision applies to any exercise of the Welsh function by the Welsh

Ministers, the First Minister or the Counsel General as if any reference in it

to Parliament or either House of Parliament were a reference to the

Assembly.

25

      (3)  

If, immediately after the transfer of the Welsh function, a provision of any of

the descriptions specified in sub-paragraph (4) applied to both—

(a)   

the exercise of the corresponding function by the Minister of the

Crown, and

(b)   

the exercise of the Welsh function by the Welsh Ministers, the First

30

Minister or the Counsel General,

           

the provision applies to any exercise of the Welsh function by the Welsh

Ministers, the First Minister or the Counsel General as if any reference in it

to Parliament or either House of Parliament were a reference both to the

Assembly and to Parliament or either House of Parliament.

35

      (4)  

The descriptions of provision referred to in sub-paragraphs (2) and (3) are—

(a)   

provision requiring any instrument made in the exercise of the

function, or a draft of any such instrument, to be laid before

Parliament or either House of Parliament,

(b)   

provision for the annulment or approval of any such instrument or

40

draft by or in pursuance of a resolution of either House of Parliament

or of both Houses, and

(c)   

provision prohibiting the making of any such instrument without

such approval.

      (5)  

If, immediately after the transfer of the Welsh function, a provision of either

45

of the descriptions specified in sub-paragraph (7)—

(a)   

applied to the exercise of the corresponding function by the Minister

of the Crown, but

 

 

 
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