House of Commons - Explanatory Note

Government Of Wales Bill - continued	House of Commons

back to previous text

Clause 21: Limit on salaries of members

102. This clause requires the Assembly to reduce the salary of any Assembly member who also receives a salary as a Member of Parliament or a Member of the European Parliament. The amount by which the salary is reduced is a matter for the Assembly. Expenses paid to Members of the House of Lords do not give rise to a reduction since they are not a salary. The reduction must either be to a particular proportion of the Assembly member's salary, or by the whole, or a proportion of the other salary or by some other amount.

103. Provision for the reduction may be made either by the Assembly's standing orders or by Assembly resolution and may also be the subject of an Assembly Measure under Part 3 of the Act. Functions may be conferred on the Assembly Commission.

Clause 22: Remuneration: Supplementary

104. This clause makes supplementary provisions about the remuneration of Assembly members. These include requiring the Assembly to publish annually information on the total amount paid, and the amounts paid to individual members, by way of salary and allowances, and also requiring the Assembly Commission, if it has had conferred on it the function of determining the levels of salaries, allowances, pensions and gratuities, to publish any determinations it makes as soon as is reasonably practicable.

Clause 23: Oath or affirmation of allegiance

105. Every Assembly member is required by this clause to take an oath of allegiance or to make a corresponding affirmation. Standing orders must specify the person before whom the oath is to be taken or the affirmation made. If an Assembly member has already, since being returned or last returned as a member, taken the oath of allegiance (or affirmed) in the capacity of a Welsh Minister or Counsel General (see clause 55) then the oath or affirmation need not be repeated.

106. Until a member has taken the oath (or affirmed) that member may not take part in any proceedings of the Assembly other than those at which the oath is taken (or affirmation made) or earlier proceedings to elect a Presiding Officer or Deputy Presiding Officer. Neither may any salary, allowances, pension or gratuity be paid to the member.

Clause 24: Assistance to groups of Assembly members

107. This clause requires the Assembly Commission to make payments to (or in respect of) political groups, where the Assembly has so determined, in order to assist Assembly members belonging to those groups to perform their functions as Assembly members. Corresponding provision is made in section 34A of the Government of Wales Act 1998 (as inserted by section 158(1) of the Political Parties, Elections and Referendums Act 2000).

108. Any determination by the Assembly that political groups should receive such payments, and fixing the amount which each is to receive, must, in order to have effect, be supported by at least two-thirds of the Assembly members voting.

109. Standing orders must provide the means of determining to which group, if any, a member belongs. They can require a political group to have a minimum number of Assembly Members belonging to it before it is recognised as such.

110. Standing Orders must provide for publication of every determination under this clause and of information about sums paid to political groups during each financial year.

Presiding Officer and administration

Clause 25: Presiding Officer etc.

111. This clause provides for the election by the Assembly, at its first meeting after each general election, of a Presiding Officer and a Deputy Presiding Officer. Unless the Assembly by a two-thirds majority of those voting resolves otherwise, the Presiding Officer and the Deputy Presiding Officer must not both belong to the same political group nor must they both be members of political groups with an executive role (i.e. groups to which Ministers belong).

112. The Presiding Officer's functions under this Act include:

Clause 10(4)	Fixing the date of an election in the event of a constituency vacancy.
Clause 11(2)	Receiving notification of the filling of a regional member vacancy.
Clause 15	Receiving notification of a member's resignation.
Clause 24(5)	Deciding questions arising under the standing orders about the political group (if any) to which a member belongs.
Clause 27(2)(a)	Membership of the National Assembly for Wales Commission ("the Assembly Commission").
Clause 38(5)(a)	Receiving notification of the issue of a direction by a Welsh Minister or the Counsel General to a current or former member of staff of the Welsh Assembly Government (or person with an equivalent status) that the person need not give evidence or produce documents to the Assembly, its committees or sub-committees.
Clause 40(1)	Administering the oath or affirmation to anyone giving evidence in Assembly proceedings.
Clause 46(5)	Designating a person to act as First Minister (on the recommendation of the Welsh Ministers) if the First Minister's office is vacant, the First Minister is unable to act or the First Minister has ceased to be an Assembly Member.
Clause 47(4)	Recommending to Her Majesty the Assembly's choice as First Minister.
Clause 96(3)	Stating whether the provisions of a proposed Assembly measure are, in the view of the Presiding Officer, within the Assembly's legislative competence.
Clause 109(3)	Stating whether the provisions of an Assembly Bill are, in the view of the Presiding Officer, within the Assembly's legislative competence.
Schedule 2, Paragraph 1(1)	Membership of the Assembly Commission.
Schedule 2, Paragraph 7(a)	Such functions as the Assembly Commission delegates to the Presiding Officer.
Schedule 2, Paragraph 11(2)	Presiding at meetings of the Assembly Commission.
Schedule 8, Paragraph 8(4)(a)	Certifying to the Assembly that the Auditor General is unable to certify or report on accounts (or statements).

113. The Presiding Officer holds office until a new Presiding Officer is elected under subsection (1). The effect is that the Presiding Officer does not cease to hold office merely because of the dissolution of the Assembly before a Welsh general election. The Deputy Presiding Officer, on the other hand, holds office only until dissolution of the Assembly. Either may, however, resign, and each would also cease to hold office upon ceasing to be an Assembly member otherwise than by virtue of a dissolution (e.g. by resignation as an Assembly member) or by being removed from office by resolution of the Assembly.

114. The Presiding Officer's functions may be exercised by the Deputy Presiding Officer if the Presiding Officer's office is vacant, or if the Presiding Officer is for any reason unable to act and the Presiding Officer may, subject to standing orders, authorise the Deputy Presiding Officer to exercise functions of the Presiding Officer. However, the requirement in paragraph 11 of Schedule 2 that the Presiding Officer presides over meetings of the Assembly Commission may not be delegated. If there is no Presiding Officer in post, or if the Presiding Officer is unable to act, then it is for the Assembly Commission to appoint another of its members to preside over its meetings.

115. Under subsection (12) the Assembly may include in its standing orders provision for another person to exercise the Presiding Officer's functions in the event that both the Presiding Officer and Deputy Presiding Officer have either vacated their offices or are unable to act, but again this provision does not extend to the function of presiding over Assembly Commission meetings, which is governed by paragraph 11 of Schedule 2 (as set out above). Standing orders are to determine how such a person is to be chosen.

116. Standing orders may regulate the participation in Assembly proceedings of the Presiding Officer and the Deputy Presiding Officer (and anyone exercising the functions of the Presiding Officer by virtue of provision made under subsection (12)).

117. No defect in the appointment of a person as Presiding Officer or Deputy Presiding Officer (or under provision made under subsection (12)), is to affect the validity of any act of that person in that capacity.

Clause 26: Clerk of the Assembly

118. This clause requires the Assembly Commission to appoint a person to be Clerk of the Assembly. Any other member of the Assembly staff can act in place of the Clerk if the Clerk's office is vacant or if the Clerk is for any reason unable to act. The Clerk can also authorise any other member of the staff of the Assembly to exercise functions on behalf of the Clerk.

119. The Clerk's functions under this Act include:

Clause 31(8)	Responsibility for publishing standing orders.
Clause 38(1)	Giving notice to persons who are by virtue of Clause 37 required to attend the Assembly, its committees or sub-committees or to produce documents.
Clause 98(3)	Receiving notification from the Counsel General or from the Attorney General that a proposed Measure is not to be referred to the Supreme Court.
Clause 99(2)(a)	Notifying the Counsel General and the Attorney General that the Assembly has resolved to reconsider a proposed Measure which has been referred to the Supreme Court and in relation to which the Supreme Court has made a reference to the European Court of Justice.
Clause 100(5)	Receiving notification from the Secretary of State that no order is to be made prohibiting the Clerk from submitting a proposed Measure for approval by Her Majesty in Council.
Clause 101(1)	Submission of proposed Assembly Measures which have been passed by the Assembly for approval by Her Majesty in Council.
Clause 101(5)	Recording the date of the approval by Her Majesty in Council of an Assembly Measure on the text of the Measure.
Clause 101(6)	Publishing the Order in Council by which an Assembly Measure is approved.
Clause 111(3)	Receiving notification from the Counsel General or from the Attorney General that an Assembly Bill is not to be referred to the Supreme Court.
Clause 112(2)(a)	Notifying the Counsel General and the Attorney General that the Assembly has resolved to reconsider an Assembly Bill which has been referred to the Supreme Court and in relation to which the Supreme Court has made a reference to the European Court of Justice.
Clause 113(5)	Receiving notification from the Secretary of State that no order is to be made prohibiting the Clerk from submitting a proposed Assembly Act for approval by Her Majesty in Council.
Clause 114(1)	Submitting Assembly Bills for Royal Assent, receiving notification of Royal Assent and
Clause 114(5)	Recording the date of Royal Assent on the text of Acts of the Assembly.
Clause 114(6)	Notifying the Assembly of the date of Royal Assent to an Act of the Assembly.
Clause 137	Principal accounting officer for the Assembly Commission.
Schedule 2, Paragraph 7(b)	Such functions as the Assembly Commission delegates to the Clerk.

Clause 27: Assembly Commission

120. This clause provides for the establishment, membership and functions of the National Assembly for Wales Commission ("the Assembly Commission") which provides the Assembly (or arranges for the Assembly to be provided) with the staff, property and services required for the Assembly's purposes, and which, by virtue of clause 41(1) represents the Assembly in legal proceedings.

121. The Assembly Commission follows the pattern of arrangements in place at Westminster and in Scotland. The Assembly itself is not a body corporate and the establishment of the Assembly Commission, which is, enables administrative and legal arrangements to be made for employing staff, holding property, purchasing services generally entering into contracts for the benefit of the Assembly. It will be required to comply with any directions given by the Assembly.

122. The Commission will consist of the Presiding Officer and four other Assembly members. Detailed arrangements for the Assembly Commission are set out in Schedule 2.

123. The Assembly will have power to make Assembly Measures under Part 3 of the Bill conferring further functions on the Assembly Commission in order to facilitate the exercise of the Assembly's own functions.

124. Part 5 of the Bill deals with how the Assembly Commission is to be financed.

Committees, etc.

Clause 28: Committees and sub-committees

125. This clause allows the Assembly by its standing orders, to make provision for the establishment of committees, and for such committees to establish sub-committees. Only Assembly members may be members of committees or sub-committees.

126. Standing orders must make provision about the membership, chairing and procedure of committees and sub-committees and may make provision for excluding an Assembly member from the proceedings of a committee or sub-committee if the Assembly member is not a member of the committee or sub-committee.

127. Subsection (5) provides that the validity of any proceedings of a committee or sub-committee is not affected by vacancies in membership, defects in appointment, or non-compliance with standing orders relating to procedure.

Clause 29: Composition of committees

128. This clause lays down certain rules about the membership of committees, designed to ensure that seats on committees are allocated to political groups in accordance with their overall representation in the Assembly, and with which standing orders made in compliance with clause 28(3) must generally conform.

129. The allocation of seats on committees between different political groups must be made according to a d'Hondt formula, (another example of which is that used in clause 9 in order to determine the allocation of electoral region seats in the Assembly for each region). A d'Hondt formula is also used in section 29 of the Northern Ireland Act 1998 to allocate committee chairs and deputy chairs. The formula is set out below.

130. No requirements are imposed in relation to the composition of sub-committees. Standing orders may make whatever provision is appropriate in relation to the membership of sub-committees.

131. The political group (if any) to which each Assembly member belongs is a matter to be determined by standing orders (clause 24(5)) and questions arising as to the application of standing orders made in pursuance of this clause are to be decided by the Presiding Officer (subsection (10)).

132. The first seat on each committee is allocated to the political group with the largest number of Assembly members.

133. The second seat is then allocated by comparing the figure X produced in relation to each political group by the formula:

X = A/(B + 1) where:

A = the number of seats in the Assembly currently held by members of the political group; and B = the number of seats on the committee that are already allocated to members of that political group.

134. After the first seat is allocated to the largest political group X will be equal to A /2 for that group and will be equal to A for all the others. The second seat on the committee is to be allocated to the political group which has the highest value for X at this stage.

135. B is then adjusted for the party to which the second seat has been allocated and X is re-calculated for each political group and the revised value of X for each group is compared. Once more the political group with the highest value of X is allocated the next seat on the committee.

136. The process is repeated until all the seats on the committee have been filled. (The size of committees is not regulated by this clause and is a matter to be decided in accordance with standing orders.)

137. Subsection (7) requires standing orders to specify how ties (i.e. cases where the calculation produces the same figure for X for two or more political groups) are to be resolved.

138. Subsection (8) allows standing orders to provide for the provisions requiring allocation of seats by d'Hondt formula to be disapplied in relation to a particular committee provided the proposal to do so is supported by two-thirds of the Assembly members voting.

139. Provision must, under subsection (9), be made by standing orders for securing, so far as is reasonably practicable having regard to the total number of committee seats available, that every independent Assembly member is entitled to be a member of at least one committee, and that the total number of committee seats allocated to each political group is at least equal to the number of Assembly members belonging to that group.

Clause 30: Audit Committee

140. While generally it will be for the Assembly to decide what committees it wishes to establish, this clause requires the Assembly to have an Audit Committee (or Pwyllgor Archwilio) in order to discharge certain statutory functions under this Bill (such as taking evidence from any of the persons mentioned in clause 142(3) if requested to do so by the House of Commons Committee of Public Accounts) and other legislation (such as the Public Audit (Wales) Act 2004).

141. Standing orders will specify how many members the Audit Committee is to have. Clause 29 provides a formula for ensuring political balance in the composition of committees. This will (unless disapplied by resolution supported by at least two-thirds of those voting) apply to the Audit Committee as to any other committee. Seats on the Audit Committee may not be allocated to the First Minister (or anyone acting as such), any Welsh Minister or Deputy Welsh Minister or to the Counsel General (or anyone acting as such), and it may not be chaired by an Assembly member belonging to the largest government party.

Proceedings etc.

Clause 31: standing orders

142. This clause requires Assembly proceedings (which include the proceedings of committees and sub-committees) to be regulated by standing orders.

143. Amongst matters for which standing orders must, under provisions of the Bill other than this clause itself, expressly make provision are the following:

Clause 10(8)	Determining the date on which a constituency vacancy is treated as occurring.
Clause 23(2)	Specifying the person before whom Assembly members are to take the oath or make the affirmation of allegiance.
Clause 27(3)	Appointment of the four members (other than the Presiding Officer, who is appointed automatically) of the Assembly Commission.
Clause 28(3)	Provision about the membership, chairing and procedure of the Assembly's committees and their sub-committees - note that such provision must, in relation to committees, meet the requirements of clause 29.
Clause 36	Provisions in relation to registration and declaration of members' interests, prohibition of paid advocacy and for defining (or providing for the definition by code or protocol) the respective roles and modes of description of constituency and regional Assembly members.
Clause 97	Procedures for scrutinising proposed Assembly Measures.
Clause 109	Procedures for scrutinising Assembly Bills.

144. The Bill also empowers (but does not oblige) standing orders to be made covering, amongst others, the following matters:

Clause 20(6)(a)	Provisions for remuneration of Assembly members (including provisions conferring functions on the Assembly Commission).
Clause 21(3)(a)	Provisions for limiting the salaries of Assembly members (including provisions conferring functions on the Assembly Commission).
Clause 25	Provisions for the exercise of the Presiding Officer's functions by the Deputy Presiding Officer, or by any other person where both the Presiding Officer and Deputy Presiding Officer are unable to act or their offices are vacant; and participation by the Presiding Officer and Deputy Presiding Officer in Assembly proceedings.
Clause 28(1)	Provision for the appointment of committees to the Assembly, and for those committees to have the power to appoint sub-committees.
Clause 28(4)	Exclusion from the proceedings of Assembly committees and their sub-committees of Assembly members who are not members of those committees and sub-committees.
Clause 31	Exclusion of members from Assembly proceedings, and withdrawal of members' rights and privileges.
Clause 34	Participation of the Counsel General (if not an Assembly member) in Assembly proceedings.
Clause 37(7)(b)	Power of committees or sub-committees to call for witnesses and documents.
Clause 40(1)	Administration of the oath or affirmation to witnesses in Assembly proceedings.
Clause 40(4)	Payment of allowances and expenses to witnesses in and those producing documents for Assembly proceedings.
Clause 53(7)(a)	Remuneration of Welsh Ministers, Deputy Welsh Ministers and the Counsel General (including provisions conferring functions on the Assembly Commission).

145. Because of the change in the structure and functions of the Assembly the standing orders currently in use by the Assembly as presently constituted will not be suitable for use once the present Bill is enacted. Consequently, new standing orders will need to be provided in readiness for use by the Assembly at its first meeting after the May 2007 election.

146. Paragraph 18 of Schedule 11 sets out how the new standing orders are to be made. In summary, the new standing orders must be made by the Secretary of State by no later than 31^st March 2007. In making the standing orders, the Secretary of State must give effect to proposals submitted to the Secretary of State by the Assembly (as currently established) no later than 28^th February 2007, provided that those proposals have been approved by a two-thirds voting majority in the Assembly. As a minimum, the standing orders have to include the mandatory provisions required by the Bill. Both the standing orders made by the Secretary of State, and the Assembly's proposals as to what provisions they should include, must be made in both English and Welsh.

147. The standing orders are to have effect as the standing orders for the reconstituted Assembly at and from its first meeting after the ordinary election in May 2007, unless and until they are remade or revised by the Assembly in accordance with clause 31(7), which requires any changes to the standing orders to be approved by a two-thirds voting majority in the Assembly.

148. Standing orders must make provision for preserving order in Assembly proceedings, including provision for preventing conduct that could constitute a criminal offence or contempt of court and provision for a sub judice rule to prevent matters which are the subject of ongoing court proceedings to be raised in questions or debate.

149. Standing orders may include provision for excluding Assembly members from proceedings and for withdrawing from an Assembly member rights and privileges of membership.

150. Standing orders must make provision for Assembly proceedings normally to be held in public, but allows standing orders to specify circumstances where committee proceedings may be in private. They may set out conditions with which members of the public who are attending Assembly proceedings must comply, and can provide for the exclusion of a member of the public who does not comply with those conditions.

151. Standing orders must provide for those Assembly proceedings that are held in public to be reported, and for reports to be published as soon as practicable.

152. The Assembly may, by resolution supported by at least two-thirds of the members voting, remake or revise the standing orders. The Clerk of the Assembly must publish standing orders from time to time.

Clause 32: Participation by UK Ministers etc.

153. This clause entitles the Secretary of State for Wales to participate, but not to vote, in proceedings of the Assembly, and to have access to documents relevant to those proceedings. Standing orders may make provision for the participation of other Ministers of the Crown and of civil servants in proceedings, and for them to have access to documents and information relevant to their participation. Again there is to be no entitlement to vote.

Prepared: 8 December 2005