Clause 73: Local government scheme

270.     Under this clause the Welsh Ministers are required to make, keep under review, and from time to time remake or revise, a local government scheme, setting out how they propose, in the exercise of their functions, to sustain and promote local government in Wales. When determining the content of the scheme the Welsh Ministers must have regard to any advice or representations on the part of the Partnership Council. The scheme, and any revisions to it must be published and laid before the Assembly as must an annual report by the Welsh Ministers setting out how the proposals in the scheme were implemented during the preceding year.

Clause 74: Voluntary sector scheme

271.     Under this clause the Welsh Ministers are required to make, keep under review, and from time to time remake or revise, a voluntary sector scheme, setting out how they propose, in the exercise of their functions, to promote the interests of relevant voluntary organisations. The Ministers are under a duty to consult any voluntary organisations they consider appropriate before they make, remake or revise a scheme.

272.     Relevant voluntary organisations are organisations that are not local authorities or other public bodies, whose activities are not carried on for profit and which, directly or indirectly, benefit Wales or a part of Wales.

273.     When determining the content of the scheme the Welsh Ministers must consider how they intend to exercise their functions in relation to matters which concern or affect voluntary organisations. The scheme must specify the Ministers proposals to assist voluntary organisations, their proposals to monitor assistance provided and how they will consult voluntary organisations about their functions.

274.     The scheme, and any revisions to it, must be published and laid before the Assembly, as must an annual report by the Welsh Ministers setting out how the proposals in the scheme were implemented during the preceding year.

Clause 75: Business organisations

275.     Under this clause the Welsh Ministers are under a duty to consult such business and other organisations as they consider appropriate having regard to the impact of the exercise of their functions on the interests of business.

Clause 76: Regulatory impact assessments

276.     Under this clause the Welsh Ministers are required to make, keep under review, and from time to time to remake or revise, a code of practice ("the regulatory impact assessment code"), setting out their policy on the carrying out of regulatory impact assessments in relation to Welsh subordinate legislation and on the carrying out of consultation in connection with regulatory impact assessments. The Ministers are under a duty to consult such persons as they consider appropriate before they make, remake or revise a code.

277.     Regulatory impact assessments are assessments as to the likely costs and benefits of complying with the Welsh subordinate legislation in question.

278.     The regulatory impact assessment code, and any revisions to it, must be published and laid before the Assembly.

Clause 77: Equality of opportunity

279.     Under this clause the Welsh Ministers are required to make arrangements with a view to securing that their functions are exercised with due regard to the principle that there should be equality of opportunity for all people.

280.     The Welsh Ministers are also required, after each financial year, to publish and lay before the Assembly a report containing a statement of the arrangements made under subsection (1) which had effect during that financial year and an assessment of how effective they were in promoting equality of opportunity.

Clause 78: Sustainable development

281.     Under this clause the Welsh Ministers are required to make, keep under review, and from time to time remake or revise, a sustainable development scheme, setting out how they propose, in the exercise of their functions, to promote sustainable development. The Ministers are under a duty to consult such persons as they consider appropriate before they make, remake or revise a scheme.

282.     The scheme, and any revisions to it, must be published and laid before the Assembly, as must a report by the Welsh Ministers, setting out how the proposals in the scheme were implemented during the preceding year.

283.     The Welsh Ministers are also required, in the year after a general election, to publish and lay before the Assembly a report containing an assessment of how effective the proposals contained in their scheme have been in promoting sustainable development.

Clause 79: Community law

284.     This clause makes it clear that a European Community obligation of the United Kingdom is also an obligation of the Welsh Ministers, the First Minister or the Counsel General if (and so far as) the obligation could be implemented or complied with by the exercise by the Welsh Ministers etc. of their functions.

285.     Where, however, the obligation in question is to achieve a result defined by reference to a quantity and that quantity relates to the whole of the United Kingdom or some part of the United Kingdom which includes a part, or the whole, of Wales this rule does not apply unless a Minister has, after consultation with the Welsh Ministers, made an order under this clause apportioning the obligation so as to define what contribution the Welsh Ministers must make to the achievement of that result.

286.     This clause also provides that the Welsh Ministers, First Minister and Counsel General have no power to make subordinate legislation, or to do any other act, if the subordinate legislation or act is incompatible with Community law or with an obligation imposed by an order of a Minister of the Crown made under this clause.

Clause 80: Human Rights

287.     This clause provides that the Welsh Ministers, First Minister and Counsel General have no power to make subordinate legislation, or to do any other act, if the subordinate legislation or act is incompatible with the European Convention of Human Rights.

288.     The clause also provides that the only persons (apart from the Attorney General, the Counsel General, the Advocate General for Scotland, Advocate General for Northern Ireland or the Attorney General for Northern Ireland) who can bring proceedings on the ground that an act of the Welsh Ministers etc. is incompatible with Convention rights or rely on Convention rights in proceedings are persons who are "victims" for the purposes of Article 34 of the Convention. (Article 34 of the convention requires applications to the European Court of Human Rights to be from "any person, non-governmental organisation or groups of individuals claiming to be a victim of a violation of a Convention right").

289.     The clause also makes clear that an act of the Welsh Ministers etc. is not outside their powers by reason of being incompatible with Convention rights if that act is not unlawful under section 6 of the Human Rights Act 1998, i.e. if the act in question was inevitable as a result complying with an Act of Parliament.

290.     Further, the clause restricts the damages which a court or tribunal may award in respect of an act incompatible with Convention rights to the damages which could be awarded if the act was found to be unlawful under section 6 of the Human Rights Act.

Clause 81: International obligations etc.

291.     This clause relates to international obligations of the United Kingdom which impinge on functions of the Welsh Ministers (and of the First Minister or Counsel General).

292.     It firstly gives the Secretary of State a power to intervene in order to restrain and if necessary reverse action by the Welsh Ministers etc. which the Secretary of State considers to be incompatible with such an obligation. The Welsh Ministers etc. can be directed by order not to take a proposed action (including the making of subordinate legislation) and any subordinate legislation which has been made by the Welsh Ministers etc. (or which was made under powers since transferred to the Welsh Ministers etc. so that they now have the power to revoke it) may be revoked by order made by the Secretary of State, which may have retrospective effect.

293.     The Secretary of State may also by order direct the Welsh Ministers etc. to take action which is within their powers if this is necessary in order to give effect to an international obligation.

294.     If an international obligation requires a result to be achieved by reference to a quantity and that quantity relates to the United Kingdom as a whole, or to a part of the United Kingdom which includes Wales, the Secretary of State may make an order apportioning the obligation so as to define what contribution the Welsh Ministers must make to the achievement of that result.

295.     Orders under this clause may only be made after the Secretary of State has consulted the Welsh Ministers and they must state the reason why they are being made.

296.     Orders directing the Welsh Ministers etc. not to act in a way which they propose and those apportioning international obligations are subject to annulment in pursuance of a resolution of either House of Parliament. Those requiring the Welsh Ministers to take action and those revoking subordinate legislation require affirmative resolutions of each House of Parliament before they can be made.

Clause 82: Agency arrangements and provision of services

297.     This clause empowers the Welsh Ministers (and the First Minister and Counsel General) and any Minister of the Crown, government department, public authority or holder of a public office in England and Wales, to enter into an arrangement under which each (including their respective staffs) exercises functions of the other. Functions to which such arrangements may relate may not, however, include functions of making, confirming or approving subordinate legislation. The fact that a party to such an arrangement has made arrangements under it for the other party to exercise a function on its behalf does not relieve the former of its legal responsibility in relation to the exercise of that function.

Clause 83: Different exercise of functions by Welsh Ministers etc.

298.     Where an enactment (usually an Act of Parliament) confers a power in relation to England and to Wales (or in relation to England and Wales and also to some other territory, such as Scotland) and the power is exercisable in relation to Wales by the Welsh Ministers (or the First Minister or Counsel General) but in relation to England by a Minister of the Crown, this clause makes it clear that the fact that the power is exercisable under the same provision does not require it to be exercised in the same way in both countries or indeed require it to be exercised at all by the Welsh Ministers etc. in relation to Wales. In other words the Welsh Ministers etc. may exercise their discretion as to how to exercise such functions differently from the way in which the relevant Minister of the Crown exercises the same discretion in relation to England.

Clause 84: Construction of references to Ministers and Departments

299.     This clause requires references in Acts of Parliament and other enactments or other documents to a "Minister of the Crown" or to a "government department" to be construed, where necessary (i.e. where relevant functions have been transferred to the Welsh Ministers, the First Minister or Counsel General) as references to the Welsh Ministers etc. Similarly, references in such Acts or other enactments or other documents to property vested in or held for the purposes of a "government department" are to be construed as including references to property vested in or held by the Welsh Ministers etc.

Clause 85: Laying of reports and statements

300.     Some Acts of Parliament impose requirements on Ministers of the Crown (and others) to lay reports or statements before Parliament. This clause makes provision for those cases where the relevant function of the Minister of the Crown has been transferred by Order in Council under clause 58 to the Welsh Ministers etc. in relation to Wales and the report or statement in question relates exclusively to matters with respect to which the Welsh Ministers have functions. If no functions in relation to those matters are exercisable any longer by Ministers of the Crown the requirement to lay the document before Parliament is to be construed as a requirement to lay it before the Assembly instead. In other cases it must be laid both before Parliament and before the Assembly.

Property, rights and liabilities

Clause 86: Property, rights and liabilities of Welsh Ministers etc.

301.     This clause deals with the holding of property, rights and liabilities of the Welsh Assembly Government. These may belong to the Welsh Ministers, the First Minister or to the Counsel General by those names and in each case this has the effect that they belong to the Welsh Ministers, First Minister of Counsel General for the time being. References in registers or other documents to property belonging to "the Welsh Ministers" etc. are to be read accordingly.

Clause 87: Transfer of Ministerial property rights and liabilities

302.     This clause introduces Schedule 4, which deals with transfers of property rights and liabilities of Minister of the Crown to the Welsh Ministers.

Supplementary

Clause 88: Rights and liabilities of the Crown in different capacities

303.     The Crown was originally regarded as indivisible. The effect of devolution to Wales, Scotland and Northern Ireland is however that the devolved administrations are, within the scopes of their respective powers, autonomous even though they exercise their functions on behalf of the Crown. In practice, therefore, each, together with the United Kingdom government, is a distinct entity and this clause makes it clear that as far as legal rights and liabilities are concerned, each ("the Crown in right of Her Majesty's Government in the United Kingdom", "the Crown in right of the Welsh Assembly Government" and so on) is to be treated as having separate legal personality. Property may be transferred between them, contracts between them may be entered into and they may be separate parties to legal proceedings.

Clause 89: Documents

304.     This clause makes provision in relation to the execution and authentication of legal documents by or on behalf of the First Minister, the Welsh Ministers or the Counsel General.

Clause 90: Validity of acts

305.     This clause ensures that the validity of the acts of a person as First Minister are not affected by any defect in that person's nomination by the Assembly and that, similarly, the validity of any act of a person as Counsel General is not affected by any defect in the Assembly's agreement to that person's appointment to that office. Similar protection is given in relation to the Presiding Officer and Deputy Presiding Officer (clause 25(14), members of the Assembly Commission (Schedule 2 paragraph 10(b)), and the Auditor General for Wales (Schedule 8 paragraph 1(4)).

Clause 91: Official secrets

306.     This clause provides that the First Minister (and any person designated to exercise the functions of the First Minister), the Welsh Ministers, the Counsel General (and any person designated to exercise the functions of the Counsel General) and Deputy Welsh Ministers are Crown servants for the purposes of the Official Secrets Act 1989.

PART 3: ASSEMBLY MEASURES

Overview of Part 3

307.     Part 3 of and Schedule 5 to the Bill introduce the new mechanism for enhancing the Assembly's legislative powers which was proposed in paragraphs 3.14 to 3.21 of "Better Governance for Wales". It should be noted that, with minor exceptions mentioned below, the Bill does not itself confer additional legislative powers on the Assembly; rather, it provides a mechanism whereby such powers can be conferred on a case by case basis as appropriate, with Parliamentary consent.

308.     The White Paper envisages that enhanced legislative competence will be conferred on the Assembly by way of Orders in Council. Clause 94 makes provision for such Orders. An Order confers competence by modifying Schedule 5. Within that competence as it appears from time to time in that Schedule, the Assembly can make laws known as Assembly Measures on "matters" set out in that Schedule as amended by the Order. Such "matters" must relate to one or more of the fields which are also set out in Part 1 of Schedule 5 to the Bill. The Order in Council ¹³ will be able to amend the list of fields in relation to which "matters" can be specified, but it will not be possible for these Orders to add a field, and so potentially give the Assembly legislative competence, if no function in the field is exercisable by the Welsh Ministers, the First Minister or the Counsel General.

¹³ An Order in Council, of whatever nature, under Part 3 of the Bill can only be made if a draft of the Order has first been approved by the Assembly and both Houses of Parliament.

309.     It is envisaged that Orders in Council conferring enhanced legislative powers in relation to "matters" will be quite short. The effect of an individual Order will be to insert, under the relevant field heading in Part 1 of Schedule 5, a description of the "matter" in relation to which the Assembly is to be given enhanced legislative competence, together with any specific exceptions necessary accurately to define its scope. Part 2 of Schedule 5 lists restrictions which a provision in an Assembly Measure must not breach if it is to be within legislative competence. There are exceptions from those restrictions, which are set out in Part 3 of Schedule 5. In Part 1 of Schedule 5, under the heading "Field 13: the National Assembly for Wales", several entries are listed on the face of the Bill as "matters" on which the Assembly may make Measures as soon as the Bill becomes law. These are the only examples of the Bill itself conferring additional legislative powers on the Assembly; and the form of the entries may be taken as a guide to the way in which further "matters" will be added to Schedule 5 by future Orders in Council conferring enhanced legislative competence.

310.     The Bill provides for the Assembly and both Houses of Parliament to approve draft Orders in Council before they are recommended to be made by Her Majesty in Council. In circumstances where the Welsh Assembly Government has initiated the proposal, the main procedural stages will normally include:

a)     preparation of a draft Order in Council following discussion between the Welsh Assembly Government, relevant Whitehall Departments, and the Wales Office. This will focus on ensuring there is clarity about the vires / scope of the Order in Council and confidence that it will give the necessary legislative competence to enable the Assembly Government's policy objective to be achieved;

b)     pre-legislative (non-statutory) scrutiny of a preliminary draft Order by the Assembly and Parliament. The precise nature of pre-legislative scrutiny undertaken by the National Assembly and Parliament will be a matter for those two institutions to determine. The processes are not prescribed in the Bill, although, in this context, paragraph 3.21 of the White Paper "Better Governance for Wales" said "The consideration (i.e., consideration by Parliamentary Committees or perhaps a joint Committee of both Houses) could be informed by understanding the use the Assembly might propose to make of these powers in the immediate future. However, as the power would be a general and continuing one for that particular policy area, this would serve only as an example of what could be done; the issue for the Committees and for each House would be the appropriateness in general of delegating legislative authority to the Assembly on the particular policy area specified in the draft Order in Council". This stage will enable modifications to be made to the draft, if necessary, in the light of comments made;

c)     the formal (statutory) processes for the Assembly and both Houses of Parliament to give their approval to the final draft Order in Council, modified as appropriate following the pre-legislative scrutiny processes. At this stage the Order in Council will not be able to be amended as both the Assembly and Parliament will need to approve identical text.

311.     When a draft Order in Council has been approved by the Assembly, the First Minister will be required, as soon as reasonably practicable, to give notice in writing of that fact to the Secretary of State, who must, by the end of 60 days (not counting days when Parliament is dissolved or prorogued or adjourned for more than four days) either have laid the draft Order in Council before both Houses of Parliament or have given the First Minister written reasons for not being prepared to do so.

312.     Once an Order in Council conferring enhanced legislative powers in relation to a "matter" has been made, the competence conferred will be of a continuing character; that is to say, although a request for such powers may have been stimulated by a particular project of reform, use by the Assembly of the competence conferred to address that project will not preclude further Assembly Measures relating to that matter, again in the future , perhaps with some different policy objective in view.

313.     Assembly legislation made under the powers conferred by Orders in Council will be known as Measures of the National Assembly for Wales. Clause 93 specifies the tests that proposed Assembly Measures must satisfy if they are to be within the legislative competence of the Assembly. In particular, Measures must relate to one or more of the matters specified in Part 1 of Schedule 5 and comply with the restrictions set out in Part 2 of Schedule 5. The question whether a particular provision of a Measure relates to a matter specified in Part 1 of Schedule 5 "is to be determined by reference to its purpose, having regard (among other things) to its effect in all the circumstances" (clause 93(7)). Within the legislative competence conferred, an Assembly Measure may make any provision that could be made by Act of Parliament (clause 93(1).

314.     Measures may only make provision in relation to Wales or in relation to functions relating to Wales (clause 93(4)(b). However, an Assembly Measure may make provision which applies in relation to England (but not beyond) for the enforcement of Assembly Measures or which it is appropriate to make for making a provision of a Measure effective (clause 93(5)(a)). Incidental and consequential amendments of the law applying in relation to England, for example to ensure that the statute book reflects accurately the effect of changes to the law made by a Measure, will also be possible (clause 93(5)(b)). The Secretary of State's power of intervention under clause 100 will ensure that the Assembly does not use its powers in a way which the Secretary of State has reasonable grounds to believe would have an adverse effect on operation of the law applying in England.

315.     Clauses 96 and 97 make provision about Assembly proceedings on proposed Measures. Subject to exceptions for special categories of Measure (see clause 97(3)), standing orders must include provision for general debate and a vote on the principles of a proposed Measure; for detailed scrutiny of its provisions; and for a final endorsement of the draft (as reconsidered and amended by the Assembly, if that is the case). Once Assembly consideration of the Measure is complete, the Clerk of the Assembly submits the proposed Measure to Her Majesty in Council for approval, and the Measure is enacted on receiving such approval.

316.     A period of four weeks following completion of the Assembly's deliberations on the Measure must elapse before it can be submitted, during which time the Counsel General or the Attorney General may refer to the Supreme Court any question as to whether the proposed Measure is within the Assembly's legislative competence. ; or the Secretary of State may prevent it from being submitted to Her Majesty if the Secretary of State has reasonable grounds to believe that its provisions are incompatible with international obligations or the interests of defence or national security, would have an adverse effect on the operation of the law as it applies in England or matters which are not specified in Part 1 of Schedule 5, or might have a serious adverse impact on water resources or water supply in England, or the quality of water in England. However, the Clerk may submit a proposed Assembly Measure for approval by Her Majesty before the end of the four weeks following its passing, provided that the Clerk has received notifications from the Attorney General and the Counsel General that they are not going to make a reference to the Supreme Court, and from the Secretary of State that the Secretary of State is not going to make an order under clause 100.

317.     Clause 97(6) requires the standing orders to provide for Assembly reconsideration of the proposed Measure provisions if the Secretary of State intervenes under clause 100, or if the Supreme Court has ruled that the proposed Measure is ultra vires or if the proposed Measure has been the subject of a reference by the Supreme Court to the European Court of Justice which the Assembly has been withdrawn as a result of a request by the Assembly to be allowed to reconsider the proposed Measure.

DETAILED COMMENTARY ON CLAUSES IN PART 3

Clause 92: Assembly Measures

318.     This clause confers on the Assembly the power to make a type of subordinate legislation in relation to Wales called "Measures of the National Assembly for Wales" in English, or "Mesurau Cynulliad Cenedlaethol Cymru" in Welsh. They are referred to in this Bill as Assembly Measures. The ultimate right of Parliament to legislate in relation to Wales, even in principle on a matter over which legislative competence has been conferred on the Assembly, is preserved.

319.     Assembly Measures will, subject to the limitations set out in the clause and in Schedule 5 as to what provisions they may contain, have the same effect as an Act of Parliament. In other words they may modify the effect of legislation made or enacted before or after this Bill is enacted, or make entirely new provision.

320.     An Assembly Measure will be enacted (i.e., will become law) when:

(a)     it has been passed by the Assembly, or

(b)     alternatively, when it has been "approved" by the Assembly, in the case of a Measure which has been reconsidered in accordance with provision made under clause 97(6),

and it has been approved by Her Majesty in Council (i.e. Her Majesty attending a meeting of the Privy Council).

321.     If an Assembly Measure is enacted, but it then appears that there was some invalidity or procedural irregularity in the proceedings of the Assembly which led up to its enactment (for example, a rule in the Assembly's standing orders was not complied with), the effect of clause 92(3) is that the invalidity or irregularity will not render the Measure invalid and it will still be law. However, it is thought that this subsection will not save a purported Assembly Measure which has not been passed at all by the Assembly because, in those circumstances, clause 92(2) would not have been complied with.

322.     Assembly Measures are to be judicially noticed. This means that, if an Assembly Measure is relevant in any Court proceedings, the court will apply its provisions without having to be proved in court by evidence.