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640. Paragraph 4(1) and (2) provide that the Assembly Commission can do anything which it considers necessary or appropriate for the purposes of, or in connection with, its functions. The Assembly Commission's functions, as set out in Clause 27(4) are the provision of property, staff and services to the Assembly, though the Assembly can confer further functions on the Assembly Commission by Assembly Measure. In particular under sub-paragraph (2) the Assembly Commission has power to enter into contracts; to charge for goods and services; to invest money not immediately required for the discharge of its functions; and to accept gifts. Paragraph 4(3) provides that gifts to the Assembly (e.g. by visiting heads of state) vest in the Assembly Commission.
641. Paragraph 4(4) allows the Assembly Commission to sell goods or provide services to the public, or to make arrangements for doing so.
642. Paragraph 4(5) and (6) allow the Assembly Commission to borrow money (but only in sterling) in order to meet a temporary shortfall in sums available to meet its expenditure. This includes a power to enter into an overdraft arrangement. The Assembly Commission can only borrow money in accordance with special or general directions given by the Assembly under clause 27(5). Thus the borrowing power is conditional upon the Assembly's prior approval.
Promotion of awareness of election system and devolved government
Paragraphs 5 and 6
643. Paragraph 5(1) gives the Assembly Commission its own specific power to promote public awareness of Assembly elections and the system of devolved government in Wales. This includes (by sub-paragraph (2)) a power to promote awareness of any newly enacted systems not yet in force. Paragraph 5(3) gives the Assembly Commission a general discretion as to how it carries out this power, but specifically permits it to carry out public education or information programmes, or to make grants facilitating the production of such programmes by other persons or bodies. The Assembly Commission can impose conditions on such grants as it thinks fit (sub-paragraph (4)).
644. Paragraph 6 allows the Assembly Commission to provide financial assistance to the Electoral Commission so as to promote public awareness of Assembly elections and the system of devolved government in Wales.
645. The powers in paragraphs 5 and 6 would permit, among other things, the promotion of public awareness about Assembly elections and devolved government in Wales through cross-border media (e.g. radio and television transmissions, "mobile" advertisements on trains etc.).
646. Paragraph 7 allows the Assembly Commission to delegate any of its functions to the Presiding Officer or to the Clerk of the Assembly. Both the Presiding Officer and the Clerk can (subject to any limitation imposed by the Assembly Commission) sub-delegate these functions to the Deputy Presiding Officer (subject to clause 25(11) and appropriate provision in standing orders and paragraph 11 of this Schedule), and to other Assembly staff (by virtue of clause 26(4)) respectively.
Principles in accordance with which functions are to be exercised
647. Paragraph 8(1) requires the Assembly Commission to make appropriate arrangements with a view to securing that its functions are exercised with due regard to the principle of equality of opportunity for all people.
648. Paragraph 8(2) obliges the Assembly Commission to have due regard to the principle of promoting sustainable development in exercising its functions.
649. Paragraph 8(3) requires it to give effect to the principle of equal treatment of the English and Welsh languages in the exercise of its functions, so far as is appropriate and reasonably practicable.
650. These duties are subject to the Assembly's power under clause 27(5) to give general and specific directions to the Assembly Commission about the exercise of its functions.
651. Paragraph 9 provides that the Assembly Commission must, after each financial year, publish and lay before the Assembly a report on the exercise of its functions during that financial year.
652. The Assembly can flesh out the detail of this duty through Assembly directions under clause 27(5). For example, it can direct what the report is to cover, and give directions so that the timetable for the report's publication and laying before the Assembly ties in with the Assembly's own audit timetable.
Validity of acts
653. Paragraph 10 preserves the validity of any act of the Assembly Commission against any vacancy among its members, any defect in their appointment or any lack of qualification for their membership. It is intended to preclude legal challenge to the Assembly Commission on these grounds.
654. Paragraph 11 provides that the Assembly Commission is free to set its own rules of procedure (sub-paragraph (1)), save that its meetings must be presided over by the Presiding Officer, unless that office is vacant or the Presiding Officer is unable to act, in which case the Assembly Commission can appoint another of its members to preside over the meeting (sub-paragraph (2)).
655. The Assembly Commission is not a Crown body as it is exercising functions on behalf of the Assembly, rather than on behalf of the Welsh Assembly Government (whose Ministers exercise functions on behalf of the Crown).
656. Paragraph 12(1) provides that Her Majesty can make Orders in Council that provide for the Assembly Commission to be treated as a Crown body for the purpose of any enactment. In particular the Order in Council may (sub-paragraph (2)) provide for employment by the Assembly Commission to be treated as Crown employment; or for land held, used or managed by the Assembly Commission, or operations carried out by them, to be treated as Crown land or operations. This mirrors provision made in relation to the Parliamentary corporate bodies of the House of Commons and the House of Lords, and that made in relation to the Scottish Parliamentary Corporate Body.
657. The Scottish Parliamentary Corporate Body (Crown Status) Order 1999 (SI 1999/677) is an example of what such an Order in Council may cover. It provides for that Body to be treated as a Crown body for the purposes of various enactments relating to planning, building legislation, fire precautions, VAT and data protection.
658. Paragraph 12(3) provides that "Crown body" means a servant or agent of the Crown and includes a government department.
659. Paragraph 12(4) provides that an Order in Council which requires the Assembly Commission to be treated as a Crown body under any enactment can be annulled by a resolution of either House of Parliament, or by resolution of the Assembly, or by a combination of such resolutions.
SCHEDULE 3: TRANSFER ETC. OF FUNCTIONS:FURTHER PROVISIONS
Part 1: Functions transferable etc.
660. Paragraph 1 provides that an Order in Council under clause 58 may make provision about any Ministerial function, including one created after the passing of the Act. However, this does not apply to functions of the Secretary of State under the Act itself, other than the power to vary the date of an Assembly general election under clause 4.
661. Paragraph 2 provides that a function of a Minister of the Crown which is exercisable in relation to the Welsh language or to any other aspect of Welsh culture is to be regarded as exercisable in relation to Wales.
662. Paragraph 3 extends the power to make provision by Order in Council under clause 58 to include provision about Ministerial functions in relation to cross-border bodies (i.e. bodies exercising functions or carrying on activities in or with respect to Wales or part of Wales but also with respect to other areas) and in relation to English border areas (i.e. parts of England adjoining Wales). In the case of English border areas the power will however only be able to be exercised in relation to functions to do with water and only if the Order in Council (or an earlier one) has made corresponding provision about that function so far as exercisable in relation to Wales or part of Wales.
663. Paragraph 4 enables an Order in Council under clause 58 to impose on Ministers of the Crown a duty to consult the Welsh Ministers before exercising certain functions in relation to that part of the sea adjacent to Wales but beyond the 12-mile limit.
Part 2: Exercise of transferred functions
664. Where a power to make subordinate legislation has been transferred to the Welsh Ministers, paragraph 5 provides that it may still be exercised by the Minister of the Crown from whom it was transferred, for the purpose of implementing any European Community obligations of the United Kingdom, enabling UK rights under Community law to be exercised of for ancillary purposes.
665. An Order in Council transferring a function to the Welsh Ministers in relation to a cross-border body or to an English border area, or providing for such a function to be exercisable concurrently by the Welsh Ministers and a Minister of the Crown may, under paragraph 6, provide that the function may only be exercised by the Welsh Ministers with the agreement of, or after consulting, a Minister of the Crown.
666. Where a function is transferred to the Welsh Ministers, and the Minister of the Crown from whom it is to be transferred was required, before exercising it, to obtain the agreement of, or consult with, another Minister of the Crown or to obtain the authorisation of Parliament, paragraph 7 provides that the requirement in question is not to apply to the Welsh Ministers unless the Order in Council transferring the function provides that it should. Where an Order in Council directs that a function is to be exercisable by the Welsh Ministers concurrently with a Minister of the Crown, and such a requirement applies to the exercise of that function by the Minister of the Crown, then paragraph 7 provides that the Order in Council may provide that it is to be exercisable by the Welsh Ministers free from that requirement.
667. Paragraph 9 makes provision for Assembly procedures (and in some cases Parliamentary procedures) to apply to subordinate legislation made (or approved or confirmed) by the Welsh Ministers under powers transferred to them or otherwise made exercisable them under an Order in Council under clause 58, in those cases where a Minister of the Crown would have been subject to Parliamentary procedures when making, approving or confirming legislation under those powers.
668. Where an instrument contains provision to be made (etc.) by the Welsh Ministers together with a Minister of the Crown or which relates to an English border area or a cross-border body (other than one which only relates to the functions of that body in relation to Wales), any Parliamentary procedure (i.e. any requirement to lay a draft of the legislation before Parliament and any requirement to obtain the approval of either or each House of Parliament before making it or any power of either or each House to annul it by resolution) is to continue to apply (in addition to any Assembly procedure).
669. Provisions which require instruments made by Ministers of the Crown to be confirmed by Act of Parliament ("provisional orders") or which apply special parliamentary procedure to an order are not to apply when they are made by the Welsh Ministers instead, unless either one of the situations referred to in the previous pargaraph above applies or, in the case ofa "special parliamentary procedure" order, the Order in Council empowering the Welsh Ministers to make the order in question specifically requires it. Equivalent Assembly procedures laid down by Assembly standing orders are to apply instead.
670. Subject to the above, subordinate legislation made by the Welsh Ministers under powers conferred on them by an Order in Council under clause 58 is to be subject to Assembly procedures equivalent to the Parliamentary procedures which would have applied it been made by a Minister of the Crown, i.e. "affirmative" or "negative" procedure as the case may be, substituting a requirement for approval or liability to annulment by resolution of the Assembly for approval or annulment by resolution of either or each House of Parliament. The standing orders of the Assembly are to make detailed provision for the relevant procedures.
671. Paragraph 10 makes provision about certain powers to lend money which may be transferred to the Welsh Ministers by Order in Council under clause 58. If the sum required to make the loan was, when the power was exercisable by a Minister of the Crown, payable out of the National Loans Fund, or the sum re-paid was to be paid into that Fund then, when the power is exercised by the Welsh Ministers, the sum required to make the loan is instead to be charged on the Welsh Consolidated Fund (to be established under Part 5 of the Act) and the sum re-paid is to be paid into that fund. The paragraph also makes provision in relation to existing loans. Upon transfer of the power to the Welsh Ministers, repayments of, and payments of interest on the outstanding loans are to be paid into the Welsh Consolidated Fund but amounts representing capital repayments are to be paid over by the Welsh Ministers to the Secretary of State for payment into the National Loans Fund.
Part 3: Supplementary
672. Paragraph 11 makes it clear that where the provisions of clause 58 and Schedule 3 refer to Ministers of the Crown the reference includes officers of a Minister of the Crown or of a government department and that functions of such an officer may be transferred to officers of the Welsh Assembly Government.
673. Paragraph 12 provides that where an Order in Council under clause 58 provides that a function may be exercised by the Welsh Ministers, the First Minister or the Counsel General and also concurrently with one or more of the others, then references in Schedule 3 to the Welsh Ministers, the First Minister or the Counsel General include references to the other person or persons by whom the function may be exercised.
674. Paragraph 13 makes it clear that a transfer of a function to the Welsh Ministers or the imposition on a Minister or the Crown of a requirement to obtain the agreement of, or to consult, the Welsh Ministers before exercising a function does not affect the validity of anything done by or in relation to that Minister of the Crown before the transfer or imposition of that requirement.
SCHEDULE 4: TRANSFERS OF MINISTERIAL PROPERTY, RIGHTS AND LIABILITIES
Transfers of Ministerial Property, Rights and Liabilities
675. This schedule provides that, an Order in Council under clause 58 transferring functions from Ministers of the Crown to the First Minister, the Welsh Ministers or the Counsel General, also operates to transfer any connected property, rights and liabilities (except employment rights and liabilities relating to Crown employment) along with those functions, unless the Order in Council provides otherwise.
676. Anything done by Ministers of the Crown in relation to such functions, property, rights and liabilities pre-transfer continues to have effect as if it had been done by the transferee.
677. Instruments, contracts and legal proceedings relating to transferred functions, property, rights and liabilities continue to have effect post-transfer with the transferee of the function substituted for the Minister of the Crown.
678. The Secretary of State can also, by order, make specific transfers of property, rights and liabilities from Ministers of the Crown to the First Minister, the Welsh Ministers or the Counsel General. Such an order can include provisions creating interests in, or rights over, each other's property, and provisions creating new rights and liabilities between the First Minister, the Welsh Ministers or the Counsel General on the one hand and Ministers of the Crown on the other.
679. The Secretary of State can also make orders to provide that any specific thing done by a Minister of the Crown has effect as if done by the First Minister, the Welsh Ministers or the Counsel General; and can make orders substituting the First Minister, the Welsh Ministers or the Counsel General for Ministers of the Crown in any specific contracts, legal proceedings, or instruments.
680. The Secretary of State can issue certificates as conclusive proof that property has been transferred under this schedule.
SCHEDULE 5: ASSEMBLY MEASURES
Part 1: Matters
681. This Part of the Schedule lists the matters, and the fields within which they fall, to which a provision in an Assembly Measure must relate if it is to satisfy the criteria in clause 93 (4) (a). Clause 94 allows this Schedule to be amended by Order in Council so as to add, remove or change fields and matters. A field cannot be added if
the Welsh Ministers, the First Minister or the Counsel General have no functions in that field.
682. The only matters listed at the passing of this Bill are ones which fall within the field "the National Assembly for Wales". The matters are concerned with Assembly Members (for example, remuneration and complaints), conferring certain functions on the Assembly Commission, the interpretation of the Welsh texts of Assembly Measures etc and procedures for the consideration of proposed private Assembly Measures.
Parts 2 and 3: General Restrictions and Exceptions
683. Part 2 of the Schedule lists restrictions which a provision in an Assembly Measure must not breach. If it does breach any of them, then the provision is outside the Assembly's legislative competence and is not law (clause 93 (6) (a)). The restrictions are subject to exceptions from the restrictions, and these are set out in Part 3 of this Schedule.
684. In particular, the restrictions, read with the exceptions :
SCHEDULE 6: REFERENDUMS ON COMMENCEMENT OF ASSEMBLY ACT PROVISIONS
685. Clause 101 allows a referendum to be held in Wales on whether certain clauses in this Bill, which give the Assembly power to make Acts, (referred to in this Bill as "the Assembly Act provisions") should come into force.
686. The referendum is initiated by Her Majesty making an Order in Council.
687. This schedule makes detailed provisions in relation to the referendum.
Paragraph 1: Entitlement to vote
688. The persons entitled to vote in a referendum are those who would be entitled to vote in an Assembly General Election which, in turn, are those who would be entitled in local government elections in Wales.
Paragraph 2: Conduct etc of referendums
689. The Order in Council that Her Majesty may make under clause 101 initiating the referendum may also contain other provisions relating to the referendum.
690. The Order in Council may, among other things, apply to the referendum other legislation which relates to elections, referendums or donations (gifts to, payments of expenses of registered political parties etc) as defined in Part 4 of the Political Parties, Elections and Referendums Act 2000.
Paragraph 3: Referendum Question and Statement
691. Paragraph 3 requires the Order in Council to set out the question which voters in the referendum are to be asked.
692. In addition, if the question on the ballot paper is going to be preceded by a statement (e.g. an explanation of the effect of bringing the Assembly Act provisions into force), the statement must be set out in the Order in Council.
693. The effect of section 104(4) of the Political Parties, Elections and Referendums Act 2000 is that the Secretary of State must, at the time when the draft Order in Council is laid before both Houses of Parliament for approval, also lay a report which contains any views expressed by the Electoral Commission on how easily the referendum question or preceding statement can be understood.
694. Paragraph 3 (3) requires the Secretary of State to send a copy of the same report to the First Minister before, or at the same time, as the Secretary of State lays it before Parliament.
Paragraph 4: Date of Referendum
695. Paragraph 4(1) requires the Order in Council to specify the date of the referendum.
696. Paragraph 4 (2): The Secretary of State has the power by order to change the date of a referendum.
697. Paragraph 4(4) says that an order made by the Secretary of State changing the date of a referendum is subject to negative Parliamentary procedure.
Paragraph 5: Referendum Period
698. Paragraph 5: Section 102 of the Political Parties, Elections and Referendums Act 2000 provides for a "referendum period " to be laid down for referendums covered by the 2000 Act. The referendum period is relevant for various provisions under the 2000 Act, such as applying restrictions on incurring referendum expenses.
699. This paragraph says that the Order in Council must set out the referendum period in relation to the referendum on bringing into force the Assembly Act provisions.
Paragraph 6: Combination of Polls
700. Paragraph 6 allows a referendum to be combined with any election (e.g., a local government election) or other referendum due to be held. The Order in Council can include provisions relating to the holding of such combined polls.
Paragraph 7: Encouraging voting
701. The Order in Council can authorise or require the Electoral Commission to do things to encourage voting in the referendum.
Paragraph 8: Provision of information to voters
702. The effect of section 108 of the Political Parties, Elections and Referendums Act 2000 is that, in a referendum on the coming into force of the Assembly Act provisions, the Electoral Commission can designate two persons or organisations, which meet certain criteria, as eligible to receive financial and other assistance to assist with their campaigns - one which will be campaigning for the Assembly Act provisions to come into force, and one which will be campaigning against them coming into force.
703. The purpose of this provision is to help to ensure that voters in a referendum have adequate information about the issue on which they are to vote and about the arguments for and against the possible outcomes.
704. Paragraph 8 (2) says that if the Electoral Commission has not, by the appropriate day (see note to paragraph 8 (4)), made a designation of a person or organisation campaigning for the Assembly Act provisions coming into force, and one campaigning against them coming in to force, then it can itself take steps to ensure that voters are adequately informed about both sides of the argument.
705. Paragraph 8 (4) : Under section 109 (6) of the Political Parties, Elections and Referendums Act 2000, the Secretary of State can make an order varying the deadline by which a person or organisation can apply to be designated to receive assistance, and the deadline by which the Electoral Commission has to decide their application.
706. Paragraph 8 (4) says that if the Secretary of State has made such an order, then the day that the order specifies is the appropriate day.
707. If the Secretary of State does not make an order, and the Electoral Commission has received, by the 29th day of the referendum period:
708. Otherwise, the appropriate day is the 29th day of the referendum period.
|© Parliamentary copyright 2005||Prepared: 8 December 2005|