Paragraph 9: Referendum Material

709.      Section 126 of the Political Parties, Elections and Referendums Act 2000 lays down requirements about what must appear on referendum material.

710.     This paragraph says that these requirements do not apply to any material which is required to be published by the Order in Council which initiates the referendum.

Paragraphs 10 and 11: Funding and Accounts

711.     Paragraphs 10 and 11 say that the Order in Council must say how the referendum is to be funded. It may say that it is to be charged on or payable out of the Welsh Consolidated Fund. It must also deal with arrangements for the preparation and audit of accounts relating to the funding of the referendum.

Paragraph 12: No legal challenge to referendum result

712.      The effect of this paragraph is that proceedings questioning the number of ballot papers counted or votes cast in a referendum must be brought by judicial review. The claim must be filed before the end of the permitted period set out in paragraph 12(2).

SCHEDULE 7: ACTS OF THE ASSEMBLY

Part 1: Subjects

713.     This Part of the Schedule lists the subjects to which a provision in an Act of the Assembly must relate if it is to satisfy the criteria in clause 107(4) (a). It also lists the exceptions within which a provision in an Act of the Assembly must not fall, if it is to satisfy the criteria in clause 107(4) (b).

Parts 2 and 3: General Restrictions and Exceptions

714.     Part 2 of the Schedule lists restrictions which a provision in an Act of the Assembly must not breach (clause 107(6)(a)). If it does breach any of them, then the provision is outside the Assembly's legislative competence and is not law. The restrictions are subject to exceptions from the restrictions, and these are set out in Part 3 of this Schedule.

715.     In particular, the restrictions, read with the exceptions :

a)     prevent functions of a Minister of the Crown which pre-date the coming into force of the Assembly Act provisions, being removed or changed by or under an Act of the Assembly, unless the Secretary of State has given his consent, or the removal or change is incidental to, or consequential on another provision contained in an Act of the Assembly;

b)      prevent functions being conferred or imposed upon a Minister of the Crown by or under an Act of the Assembly without the Secretary of State's consent;

c)     protect specified legislation (including certain provisions in this Bill), and certain classes of legislative provision from being modified by or under an Act ;

d)     protect functions of the Comptroller and Auditor General from modification without the Secretary of State's consent.

SCHEDULE 8: AUDITOR GENERAL FOR WALES

716.     Schedule 8 makes revised provision for the office of Auditor General for Wales ("AGW"). The provisions of the schedule largely replicate the equivalent provisions in the Government of Wales Act 1998 (c.38), which are marked for repeal. However, a notable change is that the AGW is now to be appointed by Her Majesty on the nomination of the Assembly (under the Government of Wales Act 1998, there was no need for any such nomination, although the Assembly was, in practice, consulted informally).

717.     Before nominating the prospective AGW, the Assembly must be satisfied that reasonable consultation has been carried out with bodies representing the interests of local government bodies in Wales (as defined in Section 12 (1) of the Public Audit (Wales) Act 2004 (c.23). This is because of the AGW's functions in relation to those bodies. For instance, under the Public Audit (Wales) Act 2004, the AGW appoints the auditor of the accounts of those bodies, and has functions under the best value regime created by Part 1 of the Local Government Act 1999 (c.27).

718.     Paragraph 2 deals with the tenure of the AGW. The length of the appointment is not to a specified age or for a specified term, but is set by Her Majesty when she appoints the AGW. The AGW can resign, by requesting Her Majesty to be relieved from office. Her Majesty can also relieve an AGW from office if She is satisfied that the AGW is medically incapable of performing the functions of the office (and also incapable of asking to be relieved of it). In addition, Her Majesty may remove a person from office as AGW on the grounds of misbehaviour. This cannot be done, however, unless the Assembly has resolved that a recommendation to this effect should be made to Her Majesty. The resolution must be passed by at least two thirds of the total number of Assembly members (not merely two-thirds of those voting on the motion).

719.     Paragraph 3 protects the independence of the AGW, providing that neither the Assembly nor the Welsh Assembly Government can direct or control the manner in which the AGW exercises the functions of the office.

720.     Paragraph 3 also provides that the AGW is not to be regarded as a Crown servant, other than for the purposes of the Official Secrets Act 1989 (c.6).

721.     Paragraph 4 provides that the AGW is a corporation sole.

722.     Paragraph 5 deals with the process for sealing documents by the AGW.

723.     Paragraph 6 provides for the AGW's salary, and the Assembly's contribution to the AGW's pension provision, as well as the pensions of former AGWs, to be charged on the Welsh Consolidated Fund (that is, these amounts will be governed by the terms of appointment of the AGW and will not be subject to annual approval by the Assembly in Budget resolutions tabled by the Welsh Ministers).

724.     Paragraph 7 makes provision regarding staff of the AGW. These provisions are closely based on the equivalent ones in the Government of Wales Act 1998, which are to be repealed.

725.     Paragraph 8 deals with the ability of the AGW to delegate the exercise of functions to members of staff or persons providing services to the AGW. In both cases, the AGW's authorisation will be needed. Such a delegation does not affect the responsibility of the AGW for the manner in which that function is exercised. The AGW cannot, however, delegate the function of certifying or reporting on accounts which are required to be laid before the Assembly, unless the Presiding Officer has certified that AGW is unable to do this in person. Even if the Presiding Officer has so certified, the delegation ceases when the office of AGW falls vacant; the expectation would be that the new AGW would exercise the remaining aspect of the function in person, once appointed.

726.     Paragraph 9 (1) provides that any compensation for breach of a function by the AGW is to be charged on the Welsh Consolidated Fund (i.e. is not to be subject to the approval of the Assembly in a Budget resolution).

727.     Sub-paragraphs (3) and (4) provide that income which the AGW has earned through the exercise of functions related to local government in Wales is to be retained by the AGW and ploughed back into carrying out those functions (rather than paid into the Welsh Consolidated Fund or being available for the AGW to use for other purposes).

728.     Paragraph 10 continues provision made in the Government of Wales Act 1998 for the AGW to be able to borrow money in order to cover a short-term deficit in funds.

729.     Paragraph 11 deals with the AGW's powers to charge fees, which are equivalent to existing provisions in the Government of Wales Act 1998.

730.     Paragraph 12 sets out the process whereby the AGW seeks annual funding for his or her Office. This largely replicates provisions of the Government of Wales Act 1998 which are to be repealed; the only change of substance is that the Audit Committee of the Assembly is now able to make modifications to the AGW's estimate without reference to the Secretary of State for Wales.

731.     Paragraph 13 imposes obligations on the AGW in relation to preparing accounts.

732.     Paragraph 14 deals with the auditor of the accounts of the AGW.

733.     Paragraph 15 sets out the time-scale within which the AGW's accounts must be audited, and with the auditor's rights of access to documents and information.

734.     Paragraph 16 provides that the Accounting Officer for the Wales Audit Office is the AGW ("the Wales Audit Office" means the AGW and members of staff). Provision is also made for the appointment of a temporary Accounting Officer.

735.     Paragraph 17 sets out the AGW's rights of access to documents, information, assistance and explanation for the purposes of the AGW's functions under the Bill. These replace the equivalent provisions of the Government of Wales Act 1998.

736.     Paragraph 18 provides that, where the Welsh Ministers have the power to appoint the auditor of a person or body, they can appoint the AGW to be that auditor , even where the AGW would not meet the normal criteria for that position. (But the Welsh Ministers cannot appoint the AGW to audit his or her own accounts). There is also provision for the AGW to audit accounts or carry out value for money examinations under a tripartite agreement between the AGW, the person or body in question, and either the Welsh Ministers or a Minister of the Crown. Further, paragraph 18 provides that where a function of preparing accounts is transferred to the Welsh Ministers by Order in Council under section 58 of the Bill, the Secretary of State may by order transfer to the AGW any function of the Comptroller and Auditor General in relation to those accounts.

737.     Paragraph 18 (8) deals with the AGW's functions in relation to information provided to the Treasury for the preparation of Whole of Government accounts under section 10 of the Government Resources and Accounts Act 2000 (c. 20).

738.     Paragraph 19 replaces the equivalent provisions of the Government of Wales Act 1998 in respect of the AGW's power to report to the public on any matter coming to the AGW's notice while carrying out the AGW's functions. This does not apply where the AGW is carrying out a function at the request of, or by agreement with, the person or body in question. Such reports must be laid before the Assembly.

739.     Paragraph 20 replaces the equivalent provisions of the Government of Wales Act 1998 in respect of the AGW's duty to certify certain claims, returns, accounts and calculations at the request of defined public sector bodies in Wales.

740.     Paragraph 21 sets out the ancillary powers of the AGW. Again, these replace the equivalent provisions of the Government of Wales Act 1998.

SCHEDULE 9: DEVOLUTION ISSUES

Part 1

Preliminary

741.     Paragraph 1 defines "devolution issues" to include questions of both the legislative competence of the Assembly in relations to Acts and Measures which it has passed and the executive competence of the Welsh Assembly Government. It also includes alleged failures by the Welsh Assembly Government to comply with its obligations under European law, or the European Convention on Human Rights.

742.     Paragraph 2 allows courts and tribunals a discretion not to treat a contention about any of the matters covered by paragraph 1 as a devolution issue, where it appears to the court or tribunal hearing the proceedings that the contention is frivolous or vexatious.

Part 2

Proceedings in England and Wales

743.     Paragraph 4 provides that the Counsel General or the Attorney General can institute proceedings to decide a devolution issue. Where proceedings are brought by the Attorney General, then the Counsel General is entitled to defend them.

744.     This does not prevent other people from bringing or defending such proceedings, but where they do so then the Attorney General and the Counsel General must be notified of the proceedings, and are entitled to take part in them (paragraph 5).

745.     Paragraph 29(2)(a) gives both the Attorney General and the Counsel General a general power to require courts and tribunals to refer devolution issues in proceedings to which they are a party to the Supreme Court.

746.     Paragraphs 6-11 set out further procedures by which devolution issues can be referred upwards from courts of first instance to the higher courts for resolution.

747.     There are different procedures depending on whether the issue arises in criminal proceedings or civil proceedings (by virtue of paragraph 2, this includes all non-criminal proceedings), and the court in which proceedings originate.

Civil proceedings in the magistrates' courts

748.     A magistrates' court can refer devolution issues which arise in civil proceedings before it to the High Court (paragraph 6) to decide. Appeals from the High Court's decision on such a reference lie direct to the Supreme Court (paragraph 11), subject to permission to appeal having been granted by either the High Court or the Supreme Court.

Civil proceedings begun in other courts

749.     Where civil proceedings are begun in courts other than a magistrates' court (e.g. the County Court, the High Court), those courts can refer any devolution issues direct to the Court of Appeal (paragraph 7(1)). The Court of Appeal's decision can be appealed to the Supreme Court, subject to permission having been granted by either the Court of Appeal or the Supreme Court (paragraph 11).

750.     Paragraph 10 allows the Court of Appeal to refer a devolution issue to the Supreme Court of its own volition, where such an issue has arisen in proceedings before the Court of Appeal other than on a reference under this Part (for example, on an appeal from a first instance decision of the High Court in which the devolution issue was not raised).

Tribunal proceedings

751.     Any tribunal (as defined by clause 151(1)) can refer a devolution issue direct to the Court of Appeal. Tribunals from which there is no appeal must make such a reference (paragraph 8). In either case, the Court of Appeal's decision can be appealed to the Supreme Court, subject to permission having been granted by either the Court of Appeal or the Supreme Court (paragraph 11).

Criminal proceedings - summary

752.     The magistrates' court can refer a devolution issue to the High Court (paragraph 9(a)). An appeal from the High Court's decision lies to the Supreme Court, subject to permission having been granted by either the High Court or the Supreme Court (paragraph 11).

Criminal proceedings - on indictment

753.     The Crown court can refer a devolution issue direct to the Court of Appeal (paragraph 9(b)). The Court of Appeal's decision can be appealed to the Supreme Court, subject to permission having been granted by either the Court of Appeal or the Supreme Court (paragraph 11).

Part 3

Proceedings in Scotland

754.     Paragraph 13 provides that the Advocate General for Scotland can institute proceedings in Scotland to decide a devolution issue. Where proceedings are brought by the Advocate General, then the Counsel General is entitled to defend them.

755.     This does not prevent other people from bringing or defending such proceedings, but where they do so then the Advocate General for Scotland and the Counsel General must be notified of the proceedings, and are entitled to take part in them (paragraph 14).

756.     Paragraph 29(2)(b) gives the Advocate General for Scotland a general power to require courts and tribunals to refer devolution issues in proceedings to which the Advocate General is a party to the Supreme Court.

757.     Paragraphs 15-21 set out further procedures by which devolution issues can be referred upwards from Scottish courts of first instance to the higher courts for resolution.

758.     There are different procedures depending on whether the issue arises in criminal proceedings or civil proceedings (by virtue of paragraph 2, this includes all non-criminal proceedings), and the court in which proceedings originate.

Civil proceedings in a court consisting of three or more judges of the Court of Session

759.     Such a court can refer a devolution issue, which arises in proceedings before it direct to the Supreme Court of its own volition (paragraph 18). If the court does not make such a reference but decides the issue itself, an appeal against its decision lies to the Supreme Court, subject to permission having been granted either by the court whose decision is being appealed or by the Supreme Court (paragraph 21(b))

Civil proceedings begun in other courts

760.     Where civil proceedings are begun in other courts, those courts can refer any devolution issues direct to the Inner House of the Court of Session (paragraph 15). An appeal against the Court of Session's decision on such a reference lies to the Supreme Court (paragraph 20).

Tribunal proceedings

761.     Any tribunal (as defined by clause 151(1)) in Scotland can refer a devolution issue direct to the Inner House of the Court of Session. Tribunals from which there is no appeal must make such a reference (paragraph 16). In either case, the Court of Session's decision can be appealed to the Supreme Court (paragraph 20).

Criminal proceedings in a court consisting of two or more judges of the High Court of Justiciary

762.     Such a court can refer a devolution issue direct to the Supreme Court (paragraph 18), where such an issue has arisen in criminal proceedings before the court other than on a reference under this part. If the court does not make such a reference in such a case but decides the issue itself, an appeal against its decision lies to the Supreme Court, subject to permission having been granted either by the court whose decision is being appealed or by the Supreme Court (paragraph 21(a)).

Criminal proceedings - other Scottish courts

763.     Scottish courts which do not consist of two or more judges of the High Court of Justiciary can refer devolution issues to that Court. An appeal against the High Court of Justiciary's decision on such a reference lies to the Supreme Court, subject to permission having been granted either by the High Court of Justiciary or by the Supreme Court (paragraph 21(a)).

Part 4

Proceedings in Northern Ireland

764.     Paragraph 23 provides that the Advocate General for Northern Ireland can institute proceedings in Northern Ireland to decide a devolution issue. Where proceedings are brought by the Advocate General, then the Counsel General is entitled to defend them.

765.     This does not prevent other people from bringing or defending such proceedings, but where they do so then the Advocate General for Northern Ireland and the Counsel General must be notified of the proceedings, and are entitled to take part in them (paragraph 24).

766.     Paragraph 29(2)(b) gives the Advocate General for Northern Ireland a general power to require courts and tribunals to refer devolution issues in proceedings to which the Advocate General is a party to the Supreme Court.

767.     Paragraphs 25-28 set out further procedures by which devolution issues can be referred upwards from Northern Irish courts of first instance to the higher courts for resolution.

Court proceedings (civil and criminal)

768.     Courts below the Court of Appeal in Northern Ireland can refer devolution issues to that Court (paragraph 29). Appeals against the Court of Appeal in Northern Ireland's decisions on such references lie to the Supreme Court, subject to permission to appeal having been granted either by that Court or by the Court of Appeal in Northern Ireland (paragraph 28).

769.     Paragraph 27 provides that where a devolution issue has arisen in proceedings before the Court of Appeal in Northern Ireland other than on a reference under this Part, that Court can refer the issue to the Supreme Court of its own volition.

Tribunal proceedings

770.     Any tribunal (as defined by clause 151(1)) in Northern Ireland can refer a devolution issue direct to the Court of Appeal in Northern Ireland. Tribunals from which there is no appeal must make such a reference (paragraph 26). In either case, the Court of Appeal in Northern Ireland's decision can be appealed to the Supreme Court, subject to permission to appeal having been granted either by that Court or by the Court of Appeal in Northern Ireland (paragraph 28).

Part 5

General

771.     Paragraph 30 enables the Attorney General or the Counsel General to refer any devolution issue, which is not being litigated to the Supreme Court.

772.     The Attorney General must notify the Counsel General that such a reference has been made where it concerns the proposed exercise of a function by the Welsh Assembly Government, who must then refrain from exercising the function as proposed until the reference has been decided or disposed of.

773.     Paragraph 31 provides that in awarding costs to litigants, courts and tribunals can take into account any additional expenses incurred as a result of joining into proceedings the Attorney General, the Counsel General, or the Advocates General for Scotland or Northern Ireland.

774.     Paragraph 32 allows general court procedure rules and practice directions to make further provision about the procedure on devolution issues.

SCHEDULE 10: MINOR AND CONSEQUENTIAL AMENDMENTS

775.     This Schedule contains the minor and consequential amendments to other enactments necessitated by the provisions of this Bill.

SCHEDULE 11: TRANSITIONAL PROVISIONS

776.     This Schedule contains detailed provisions dealing with the arrangements necessary to ensure an effective transition from the exercise of functions by the National Assembly for Wales corporate body constituted by the Government of Wales Act 1998 (for the purposes of this Schedule, "the old Assembly") to the new National Assembly constituted by this Bill and to the Welsh Ministers.

Paragraph 1: 2007 election to be election to Assembly constituted under this Act

777.     Most of the provisions of the Bill are to come into force immediately after the Welsh general election to be held in May 2007. This paragraph, (together with those which follow it), enable that election, although generally held under the existing Government of Wales Act 1998, to be an election to the Assembly as newly constituted and to take account of the changes to electoral arrangements, and other associated reforms, for which this Bill provides.

Paragraph 2: First meeting after 2007 ordinary election

778.     This paragraph provides for the date of the first meeting of this Assembly to be set by order made by the 'old Assembly' but that date must be within seven days of the Welsh general election.

Paragraph 3: Date of 2011 election

779.     This paragraph provides for the date of the first ordinary Welsh general held after 2007 to be calculated by reference to the 2007 election. That is, that general election will be held in 2011.

Paragraphs 4 and 5: No dual constituency and regional candidacy

780.     These paragraphs amend GoWA to prevent dual candidacy (see clause 7(5) and (6) of this Bill), ensuring that candidates for election to the Assembly in the 2007 election cannot stand for election both as a member for a constituency and as a member for an electoral region. An individual will only be able to be a candidate to be elected to the Assembly to represent either a constituency or a region.

Paragraph 6: Electoral region vacancies before first general election

781.     This paragraph provides that, for the period after the 2007 ordinary Welsh general election but before the ordinary Welsh general election to be held in 2011, clause 11 (which deals with electoral region vacancies) is to be read as making reference to members elected at the ordinary election of 2007 and to that election.

Paragraph 7: Election orders

782.     This paragraph provides for an order made under section 11 of GoWA, which is in force immediately before the repeal of that section, to continue to have effect until it is replaced by an order made under this Bill.

Paragraph 8: Term of office of Assembly members

783.     This paragraph provides that, for the period after the 2007 ordinary Welsh general election and until the ordinary Welsh general election to be held in 2011, clause 14 (which deals with term of office of Assembly members) is to be read as making reference to members elected at the ordinary election of 2007 and to that election.