House of Commons - Explanatory Note
Government Of Wales Bill - continued          House of Commons

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Clause 161: Transitional etc. provision

550.     This clause gives effect to Schedule 11, which contains transitional and transitory provisions and savings. It also confers a general power on the Secretary of State to make, by order, any other transitional, transitory or saving provision which appear appropriate, including provisions saving other legislation from amendment, repeal or revocation by this Bill. This power is not limited by Schedule 11, and orders made under this clause can modify that Schedule.

551.     The provisions made in Schedule 11 and in any order under this clause are subject to sections 16 and 17 of the Interpretation Act 1978. Section 16 of that Act makes general provisions about the effect of repeals, e.g. saving the validity of anything done or any right incurred under a previous enactment prior to its repeal. Section 17 provides that where an Act repeals and re-enacts a previous enactment, unless the contrary intention appears, any reference in any other enactment to the repealed enactment shall be construed as one to the re-enacted provision. It also provides that subordinate legislation, or other things done under the repealed enactment, are to have effect as if made or done under the re-enacted provision.

Clause 162: Repeals and revocations

552.     This section introduces Schedule 12.

Clause 163: Extent

553.     The Bill's substantive provisions extend (with limited exceptions) to the whole of the United Kingdom although its practical application will be confined almost entirely to Wales. The provisions which do not extend to the whole of the United Kingdom are clause 36(7) to (9), clause 39 and clause 40(2) and (3). These provisions create criminal offences and extend only to England and Wales. Where the Bill makes consequential amendments, these have the same extent as that of the statutes amended.

Clause 164: Short title

554.     This section provides the title by which reference may be made to this Act in other legislation.

SCHEDULE 1: ALTERATION OF ASSEMBLY ELECTORAL REGIONS

555.     Clause 2 of the Bill says, among other things, how the Assembly electoral regions are delineated and how many seats will be allocated to each.

556.     Alterations may need to be made to those regions, and to the numbers of seats allocated to those regions, as a consequence of changes to parliamentary constituencies.

557.     This Schedule deals with making alterations in such circumstances.

Paragraph 1 - Introduction

Paragraph 1(2)

558.     Sub-sections 3(1) and 3(2) of the Parliamentary Constituencies Act 1986 require the Electoral Commission to keep under review the representation of England, Scotland, Wales and Northern Ireland in the House of Commons, and to make regular reports to the Secretary of State about the representation of the whole of each of those parts of the United Kingdom (for example, the whole of Wales).

559.     Sub-section 3 (3) of the Parliamentary Constituencies Act 1986 also gives the Electoral Commission the power to report to the Secretary of State on a particular area (for example, a specific area of Wales), showing the constituencies into which it thinks the area should be divided, in order to ensure compliance with rules which are set out in Schedule 2 to the Parliamentary Constituencies Act 1986.

560.     The effect of sub-section 3A (1) of the Parliamentary Constituencies Act 1986 is that where the Electoral Commission intends to consider making a report under sub-

section 3(1) or sub-section 3(2) of that Act, the Boundary Committee for Wales must carry out a review.

561.     The purpose of the review by the Boundary Committee for Wales is to enable it to make recommendations to the Electoral Commission about what it should put in its report to the Secretary of State.

562.     Under sub-section 3A(2) of the Parliamentary Constituencies Act 1986, the Boundary Committee for Wales must put its recommendations in a report to the Electoral Commission.

563.     Paragraph 1(2) of Schedule 1 to this Bill says that Schedule 1 will apply where the Electoral Commission intends to consider making a report in respect of the whole of Wales, or a part of Wales under section 3 of the Parliamentary Constituencies Act 1986 and, therefore, the Boundary Committee for Wales is under a duty to make recommendations to the Electoral Commission about what the report should say.

Paragraph 2 - Assembly electoral region issue

Paragraphs 2(1) and 2(2)

564.     Paragraph 9 of this Schedule sets out rules which must be followed in relation to the delineation of Assembly electoral regions, and the allocation of regional seats to those regions.

565.     If the Boundary Committee for Wales has provisionally decided upon some recommendations which it is minded to put in a report to the Electoral Commission, and which would involve altering any parliamentary constituency in Wales, it must also consider whether there needs to be any alteration to the Assembly electoral regions, or to the allocation of seats to those regions, in order to ensure that the rules in paragraph 9 of this Schedule would still be complied with, following those alterations to parliamentary constituencies ("the Assembly electoral region issue").

Paragraph 3 - Notice of Committee's proposed recommendations

566.     This paragraph requires the Boundary Commission to publish notice of its recommendations in each electoral region affected.

Paragraph 3(1)

567.     For the purposes of this paragraph, a recommendation which "affects" an Assembly electoral region need not be a recommendation that the region should be

altered. A recommendation that a region should not be altered also counts as a recommendation that affects a region.

Paragraph 3(2)

568.     This says what must be in the notice. The notice must:

    a)     say what the effect of the Boundary Committee for Wales' proposed recommendations will be;

    b)      if the Boundary Committee is recommending a change to an electoral region, say where the public can inspect a copy of the recommendations. There must be at least one place of inspection in each constituency which falls within the electoral region;

    c)      explain that if anyone wishes to express a view about the recommendations they may do so by writing to the Boundary Committee. Their letter must be received by the Committee within one month of the date of publication of the notice.

Paragraph 3(3)

569.     The Boundary Committee for Wales must take into account any views which are received by it within the one month time limit.

Paragraph 3(4)

570.     This says what must happen if, after the newspaper notice has been published, the Committee changes any of its recommendations in respect of an electoral region (including where it has made the change after taking into account views expressed to it following publication of the newspaper notice).

571.     The Committee must publish another notice in a newspaper which is readily available in the electoral region to which the changed recommendations relate. The notice must:

    a)     say what the effect of the changed recommendations would be;

    b)     If a changed recommendation would have the effect of altering an Assembly electoral region, say where the public can inspect a copy of the recommendation. There must be at least one place of inspection in each constituency which falls within the electoral region;

    c)     Explain that if anyone wishes to express a view about the changed recommendations they may do so by writing to the Boundary Committee. Their letter must be received by the Committee within one month of the date of publication of the notice.

Paragraph 3(5)

572.     However, where the effect of the Boundary Committee's recommendation (original or revised) is only to alter the number of regional seats for a region, and the resulting number of regional seats for all the regions would be exactly divisible by 5, the Committee does not have to publish a newspaper notice.

Paragraph 3(6)

573.     However, if the Boundary Committee's proposed recommendations ( original or revised) would result in the total number of seats for all the Assembly electoral regions not being exactly divisible by 5, then the recommendation will necessarily affect all the electoral regions.

574.     Therefore, the Boundary Committee must publish newspaper notices which comply with paragraph 3(2) of this Schedule in all the electoral regions. The effect on each region must be stated in the notice. The Boundary Committee is under a duty to take into account any views expressed following publication of the notice.

Paragraph 4 - Local inquiries

575.     This paragraph enables the Boundary Committee to hold a local inquiry in respect of the Assembly electoral region or regions.

Paragraph 4(6)

576.     The person appointed to hold the local inquiry has the powers to summon witnesses that are set out in sub-section 250(2) of the Local Government Act 1972.

577.     The person holding the inquiry may issue a summons requiring someone to attend the inquiry at a particular time and place, and to give evidence or produce documents of a specified nature. The documents must be ones which are in his custody or control, and which relate to any matter which is in issue at the inquiry.

578.     The person holding the inquiry can take evidence on oath, and may administer the oath.

579.     Witnesses who have been summoned to attend must have their expenses paid.

580.     Sub-section 270(3) of the Local Government Act 1972 also applies to inquiries held under this paragraph, and this creates offences about deliberately disobeying summonses, and deliberately altering, suppressing, concealing, or destroying evidence.

581.     The offences are summary only. The maximum fine for the offences is level 3 on the standard scale, or imprisonment for up to six months, or both.

Paragraph 5 - Committee's Report

582.     This paragraph requires the Committee's report to contain the recommendations which they propose should be included in the Electoral Commission's report under paragraph 8 of this Schedule.

Paragraph 6 - Consideration of the Committee's Report by the Commission

General

583.     Under section 3A(3) of the Parliamentary Constituencies Act 1986, when the Electoral Commission receives the recommendations of the Boundary Committee in relation to parliamentary constituencies, the Commission may :

    a)     accept all the Committee's recommendations and include them in its report to the Secretary of State;

    b)      agree changes to the recommendations with the Committee, and then include the changed recommendations in its report; or

    c)     reject the recommendations

584.     If it rejects the recommendations, it must either:

    a)     require the Boundary Committee to reconsider them, with a view to the Committee submitting different recommendations to the Commission; or

    b)      require the Committee to carry out a fresh review of the whole or part of the area it had originally reviewed; or

    c)     only in a case where the purpose of the Boundary Committee's review was to enable the Electoral Commission to submit a report under section 3(3) of the Parliamentary Constituencies Act, take no further action.

585.     A report under section 3 (3) of the Parliamentary Constituencies Act 1986 is the one which the Electoral Commission has power to submit to the Secretary of State in relation to a particular area of the United Kingdom, making recommendations about the division of that area into parliamentary constituencies, in order to ensure that rules set out in Schedule 2 to the Parliamentary Constituencies Act are complied with.

Paragraph 6(1)

586.     Paragraph 6(1) says that the Electoral Commission has the same powers (with any necessary modifications) in relation to recommendations by the Boundary Committee about Assembly electoral regions, as it has in relation to recommendations about parliamentary constituencies (i.e., those set out in section 3A(3) of the Parliamentary Constituencies Act 1986 and explained above).

Paragraphs 6(2) to (4)

587.     These paragraphs say that if the Electoral Commission is minded to use its powers in section 3A (3) (b) and (c) of the Parliamentary Constituencies Act 1986 (these are the powers of acceptance with agreed changes, or rejection), in relation to recommendations by the Boundary Committee about Assembly electoral regions, then it must have regard to any views expressed in response to the Committee's newspaper notice.

588.     If the Commission is minded to use those powers in relation to only part of an electoral region, then the views to which it must have regard are those which relate to that part.

589.     It must also have regard to the findings of any local inquiry which was held.

590.     If the Commission is minded to use its powers in relation to only part of an electoral region, then the findings of any local inquiry to which it must have regard are those which relate to that part.

Paragraph 7 - Directions by Commission by the Committee

591.     This applies section 3A (4) of the Parliamentary Constituencies Act 1986 with a modification.

592.     When the Boundary Committee is carrying out its duties under the Parliamentary Constituencies Act 1986, it must comply with any directions which the Electoral Commission gives to it.

593.     The effect of the modification is that the Boundary Committee must only follow them if it can do so and still ensure compliance with the rules in paragraph 9 of

the this Schedule (i.e., the rules which must be followed in relation to the delineation of Assembly electoral regions, and the allocation of regional seats to those regions).

Paragraph 8 - Commission's Report

594.     This paragraph deals with what happens if the Electoral Commission submits to the Secretary of State a report under section 3(1) of the Parliamentary Constituencies Act 1986 which recommends alterations in parliamentary constituencies in Wales, or a report under section 3(3) of that Act which relates to any constituency in Wales.

Paragraph 8(1)

595.     The report under section 3 (3) of the Parliamentary Constituencies Act 1986 is one which says what constituencies the Electoral Commission think an area should be divided into, in order to comply with rules that are set out in paragraphs 1 to 6 of Schedule 2 to the Parliamentary Constituencies Act 1986.

Paragraph 9 - Rules

General

596.     The rules in paragraph 9 apply to the Boundary Committee's consideration of the Assembly electoral region issue and the Electoral Commission's report under section 3 of the Parliamentary Constituencies Act 1986.

Paragraph 9(1)

The rules are as follows:

597.     The whole of an Assembly constituency must be contained in the same electoral region. It must not straddle two or more regions.

598.     The electoral regions must contain similar number of electors, so far as is reasonably practicable. There may be special geographical factors which mean that this is not reasonably practicable, and these can be taken into account.

599.     The number of regional seats must be half the number of Assembly constituencies. For example, if there are 40 constituencies, there must be 20 regional seats.

600.     However, if the number of constituencies can't be divided exactly by 2 (e.g. 39), one is added to the number of constituency seats, and then that number is divided by 2.

601.     For example, if there were 39 constituencies, "1" would be added to 39, to give 40, and 40 would then be divided by 2 - so the number of regional seats would be 20.

602.     The number of seats in each electoral region will be the total number of regional seats in the Assembly, divided by 5. Therefore, if the total number of regional seats is 20, the number of regional seats in Assembly electoral region "A" will be 4.

Paragraph 9(2)

603.     However, if the total number of regional seats cannot be divided exactly by 5 (for example, 19), the next highest number which can be divided exactly by 5 is identified (for example, if the total number of regional seats was 19, that next highest number would be 15.)

604.     This is then subtracted from the total number of regional seats (in the above example, 15 would be subtracted from 19, leaving 4).

Paragraph 9(3)

605.     The result (4, in the above example) is the number of residual seats.

Paragraph 9(4)

606.     Only one residual seat can be allocated to each electoral region.

Paragraph 9(5)

607.     The next highest number below the total number of regional seats which can be divided exactly by 5 is then taken again. In the above example of 19 regional seats, it was 15. This is then divided by 5. In this example, the result would be 3.

608.     For each electoral region, that number is then added to the number of Assembly constituencies in the region. The result is then divided into the number of electors in that region.

Paragraph 9(6)

609.     Taking the above example again, if the number of electors in electoral region A is 130,000, and the number of constituencies in the region is 10, 130,000 is divided by 13 (10 + 3), giving a result of 10,000.

610.     The results which this calculation produces for each region are then compared. The residual seats are then allocated. It is desirable that the residual seats are allocated to the regions in respect of which this calculation produced the highest results, and this should be taken into account when the residual seats are allocated.

611.     If an electoral region is not allocated a residual seat, the number of regional seats it has will just be one fifth of the next highest figure to the total number of regional seats which can be divided exactly by 5. In the example of 19 regional seats, the next highest number would 15, which when divided by 5 gives 3 regional seats.

Paragraph 10 - Orders in Council giving effect to Commission reports

Paragraph 10(1)

612.     Recommendations of the Electoral Commission are put into effect by an Order in Council, made under the Parliamentary Constituencies Act 1986.

613.     Where parts of the Order relate to parliamentary constituencies, and parts relate to Assembly regions, those parts can come into force on different dates.

Paragraph 10(2)

614.     However, where an Order has come into force altering Assembly electoral regions, any constituency by-elections, or the filling of vacancies in regional seats will take place on the basis of the old electoral regions. Voters will only vote on the basis of the new electoral regions at the next general election.

Paragraph 11 - Interpretation: the regional electorate

Paragraph 11(1) to 11(3)

615.     It is necessary for the Electoral Commission and the Boundary Committee to identify the regional electorate figure for each region, when they are considering whether there needs to be any alteration to the Assembly electoral regions to ensure the rules in paragraph 9 of this Schedule are still complied with.

616.     This paragraph defines what the Commission and the Committee should take as the regional electorate figure.

617.     For each Assembly electoral region, it is the total number of persons who are on a register of local government electors at addresses which fall within that Assembly electoral region, on a specific date.

618.     The specific date ("the enumeration date" referred to in paragraph 11 (2)) is the date on which the notice appeared in the London Gazette, saying that the Electoral Commission intends to issue a report into parliamentary constituencies under the Parliamentary Constituencies Act 1986. The Electoral Commission has a duty to publish the notice under section 5 (1) of that Act.

Paragraph 12: Interpretation: general

Paragraph 12

619.     When this Schedule refers to "the Assembly electoral region issue", it means the question the Boundary Committee are obliged to consider as to whether any recommendations they are making about alterations to parliamentary constituencies require any alterations to Assembly electoral regions, or to the allocation of Assembly regional seats.

620.     There is a clarification of the meaning which should be given to the phrase "recommendation" in this Schedule. It can mean both a recommendation that an alteration is made, and a recommendation that no alteration is made, unless it is clear from the context in which it is used that it only means a recommendation that an alteration be made.

621.     The effect of this clarification means that, for example, in paragraph 3 (2) (a) of this Schedule "recommendation" would include both a recommendation for a

change to an Assembly electoral region, and a recommendation for no change to an electoral region.

622.     In contrast, when paragraph 3 (2) (b) refers to "a copy of the recommendations" being open to inspection, it is clear from the first part of that sub-paragraph that "recommendations" is only intended to refer to those recommendations which are for a change to an electoral region.

SCHEDULE 2: ASSEMBLY COMMISSION

623.     Schedule 2 makes further detailed provision about the National Assembly for Wales Commission ("the Assembly Commission"), which is established by Clause 27. This Schedule covers the membership, property, staff, powers, duties, proceedings and status of the Assembly Commission.

624.     The Schedule applies the principles of sustainable development, equality of opportunity and equal treatment of the English and Welsh languages to the exercise of the Assembly Commission's functions. It also provides a power for the Assembly Commission to promote public awareness of the system of devolved government in Wales and the system for the election of Assembly members.

Membership

Paragraph 1

625.     Paragraph 1(1) provides that unless the Presiding Officer ceases to be an Assembly member (otherwise than by reason of a dissolution of the Assembly), the Presiding Officer continues to hold office as a member of the Assembly Commission until another person is elected to the office of Presiding Officer (under clause 25).

626.     Paragraphs 1(2) and (3) provide that the four other members of the Assembly Commission appointed under clause 27(3) remain in office, including after a dissolution, until a replacement is appointed. They would only cease to be a member of the Assembly Commission if they died, became disqualified from being an Assembly member, resigned their seat as an Assembly member or their office as a member of the Assembly Commission, or were removed from the Assembly Commission by resolution of the Assembly.

627.     Thus the effect of paragraph 1 is to allow the Assembly Commission to continue to function during a dissolution.

Property

Paragraph 2

628.     This provides that the Assembly Commission has the power to acquire, hold and dispose of property.

629.     By virtue of paragraph 28 of Schedule 10 to the Bill, which inserts section 166C and 166D into the Copyright, Designs and Patents Act 1988, the Assembly Commission is the first owner of the copyright in proposed Measures and Bills introduced into the Assembly.

Staff

Paragraph 3

630.     Paragraph 3(1) gives the Assembly Commission the power to appoint staff.

631.     Paragraph 3(2) provides that staff employed by the Assembly Commission, including the Clerk of the Assembly, are referred to in the Act as the members of the staff of the Assembly.

632.     Paragraph 3(3) provides that staff of the Assembly are not Crown servants, and therefore they are not civil servants. However, paragraph 12(2)(a) (see below) allows Her Majesty by Order in Council to provide for the purposes of any enactment that Assembly Commission employees be treated as Crown servants.

633.     So, for example, an Order in Council could provide for employment by the Assembly Commission to be treated as "Crown employment" for the purposes of certain provisions of the Data Protection Act 1998, as is the case in relation to employees of the Scottish Parliamentary Corporate Body.

634.     Paragraph 3(4) requires the procedures for recruiting and selecting staff of the Assembly, and the terms and conditions on which they are employed (including salaries), to be broadly in line with those for civil servants serving the Welsh Assembly Government.

635.     In general this will require the Assembly Commission to adopt procedures broadly corresponding to the Civil Service Recruitment Code, and the Civil Service Code made under it, so as to ensure fair and open recruitment and selection of staff on merit, and upholding the political impartiality of staff.

636.     However, as is the case with civil service recruitment, there can be exceptions to these principles e.g. in appointing special advisers, in relation to recruitment of disabled persons, or in relation to certain categories of staff with Welsh language qualifications. Thus the Assembly Commission will enjoy a similar degree of flexibility to the Welsh Assembly Government in these matters.

637.     Staff seconded in or out of the Assembly post-separation will retain their pre-existing employment status, i.e. civil servants working for the Welsh Assembly Government who are seconded to work at the Assembly will retain their status as civil servants.

638.     Paragraph 3(5)-(8) deals with salaries, expenses and pensions etc. The Assembly Commission will be able to make arrangements for the payment of pensions, gratuities or allowances to former employees (sub-paragraph (5)), and in particular can make contributions towards such payments (sub-paragraph (6)).

639.     The effect of sub-paragraph (7) is that staff of the Assembly can be covered by the Principal Civil Service Pension Scheme (as can staff of the Assembly Commission's Scottish equivalent, the Scottish Parliamentary Corporate Body). Sub-paragraph (8) require payments to the Minister for the Civil Service in respect of Assembly staff members' participation in that scheme to be made by the Assembly Commission.

 
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Prepared: 8 December 2005