Paragraph 9: Disqualification orders

784.     This paragraph provides that an Order in Council made under section 12(1)(b) GoWA (designating offices which disqualify persons from being Assembly members) which is in force immediately before the repeal of that section, will continue to have effect in relation to this Assembly until it is replaced by an order made under this Bill.

Paragraph 10: Disqualification of Lords of Appeal in Ordinary

785.     This paragraph disqualifies a Lord of Appeal in Ordinary from being an Assembly member, thereby applying to those disqualified from election in 2007 a minor adjustment made by the Bill.

Paragraphs 11 and 12: Remuneration of Assembly members

786.     Paragraph 11 provides that determinations made under section 16 GoWA, which have effect as to salaries and allowances payable to the Assembly First Secretary, other Assembly Secretaries, the Presiding Officer and Deputy Presiding Officer, the leader of the largest political party not represented in the executive committee and other Assembly members, which are in force immediately before the repeal of that section, continue to have effect until replaced by a determination under this Bill and apply, respectively, to the First Minister, the Welsh Ministers, to the Presiding Officer and Deputy Presiding Officer, to the leader of the largest political group not represented in the Welsh Assembly Government and to other Assembly members.

787.     Paragraph 12 provides that an order made under section 17 of GoWA providing for the reduction of salary payable to an Assembly member (to take into account any salary that member may receive as a Member of the UK or European Parliaments) continues to have effect in relation to this Assembly until replaced by provision made under clause 21 of this Bill.

Paragraph 13: Publication of information about remuneration of Assembly members

788.     This paragraph ensures that the Assembly (as constituted under the Bill) is to have responsibility for publication of information about remuneration of Assembly members relation to the financial year 2006-07 (i.e. relating to the last year of the "old Assembly" and its members). The extent of the duty is limited to that to which the "old Assembly" was under as opposed to the wider duty of publication under this Bill.

Paragraph 14: Assistance to groups of Assembly members

789.     This paragraph ensures that a determination made under section 34A GoWA, which is in force immediately before the repeal of that section, will continue to have effect in relation to the Assembly until replaced by provision made under this Bill.

Paragraph 15: First Presiding Officer

790.     This paragraph ensures that the holding of the 2007 election triggers the duty of the Assembly to elect a Presiding Officer and Deputy Presiding Officer.

Paragraph 16: First Clerk

791.     This paragraph provides that the person who is the Clerk to the old Assembly (a post defined by the old Assembly's standing orders rather than GoWA itself) is to be the Clerk of the Assembly for the purpose of functions under this Bill until the Assembly's first Clerk is appointed by the Assembly Commission.

Paragraph 17: Promotion of awareness of election system and devolved government

792.     This paragraph provides that paragraphs 5 and 6 of Schedule 2 (which authorise the Assembly Commission to promote awareness of the election system and devolved government either directly or by financial support for the Electoral Commission) have effect until the end of the "initial period" (defined by reference to the appointment of a First Minister under this Bill) as if the reference to the Commission were a reference to the old Assembly.

Paragraph 18: Standing Orders

793.     This paragraph places a duty on the Secretary of State to make and publish, in English and Welsh, standing orders which are to govern the proceedings of the Assembly constituted under this Bill and to do so before the ordinary Welsh general election is held in 2007 (i.e. by 31^st March 2007 at the latest).

794.     These standing orders will be needed in order to ensure that the Assembly constituted under this Bill will, from the very beginning, have a set of standing orders which will enable it to operate the new arrangements made by this Bill and which comply with its various mandatory requirements.

795.     The aim of the Secretary of State is, however, to ensure that the old Assembly has the greatest practicable role in the process of formulating the standing orders in question and the Bill therefore provides that the Secretary of State must give effect to any proposals made by the old Assembly which have been approved by two thirds of the Assembly members voting on the proposal in question and which have reached the Secretary of State no later that 28 February 2007.

796.     Once made, the standing orders will be capable of being revised or re-made by the Assembly in accordance with clause 31, i.e. with the support of at least two-thirds of Assembly members.

Paragraph 19: Witnesses and documents: penalties

797.     Clauses 39(4) and 40(3)(b) fix the maximum terms of imprisonment which can be imposed for offences under clauses 39(1) and 40(2), respectively. These are framed by reference to provisions relating to sentencing which are contained in section 281(5) of the Criminal Justice Act 2003. Since that section is not yet in force, provision has to be made for fixing these maximum terms by reference to the present law, with the effect that until section 281(5) of the 2003 Act comes into force, the maximum is to be 3 months rather than 51 weeks. (The provisions of the 2003 Act mean that the effect of a term of imprisonment of 51 weeks will not, once section 281(5) of that Act is in force, be directly comparable to a term of equal nominal length under the existing law.)

Paragraphs 20 to 23: exercise of functions before appointment of first First Minister

798.     These paragraphs ensure that governmental functions of the existing Assembly can continue to be exercised during "the initial period", that is, the period beginning at the start of polling day 2007 (when all members of the existing Assembly, including Assembly Ministers, would normally cease to be able to exercise those functions) and ending with the appointment of a First Minister.

799.     This is done by ensuring that membership of the Assembly constituted under GoWA does not, in relation to certain office-holders, cease until the end of the initial period. These office-holders are the Assembly First Secretary, the Assembly Secretaries (i.e. members of the "Assembly Government") and also the Presiding Officer, provided these persons are candidates for election to the Assembly as constituted under this Bill.

800.     These persons will however cease to be treated as members of the Assembly if they are not re-elected or if they are disqualified from being members of the Assembly as re-constituted.

801.     Paragraph 21 provides that during the initial period, functions of the Assembly (other than those which are the subject of paragraph 22) will be exercisable by the First Secretary (or if that office-holder is not qualified to be treated as continuing in office, or ceases to be so qualified) one of the Assembly Secretaries designated by the other Secretaries. The First Secretary (or the other Secretary designated to act as such) will be able to delegate functions exercisable to one of the other Secretaries or to staff and functions delegated to Secretaries will be able to be further delegated by them to staff.

802.     Where functions are delegated to staff, the head of the Assembly staff (the Permanent Secretary) makes the arrangements for the exercise of those functions. Any condition, restriction or limitation which applied to the exercise of a function before

the beginning of election day applies equally to the exercise of that function during the initial period.

803.     Paragraph 22 maintains the distinction between the parliamentary and executive sides of the existing Assembly and provides that the former are to be exercisable during the initial period by the person who was the presiding officer immediately before the or, if that person does not qualify to be treated as continuing in office, or ceases to be so qualified, by the person who was the Clerk of the old Assembly. The presiding officer (or the clerk) will be able to delegate functions to staff of the Assembly. Where functions are delegated to staff, the Permanent Secretary is to make the arrangements for the exercise of the functions. Any condition, restriction or limitation which applied to the exercise of a function before the beginning of election day applies to the exercise of that function during the initial period.

804.     Paragraph 23 provides that subordinate legislation is to be made, confirmed or approved during the initial period by being signed by the person exercising the relevant function. Any such legislation is not subject to the normal Assembly procedures but the Clerk will be required to lay it before the Assembly as soon as reasonably practicable after the end of the initial period.

Paragraphs 24 to 26: Saving for existing instruments conferring or imposing functions

805.     These paragraphs ensure that transfers of functions to the existing Assembly under the provisions of GoWA, and various miscellaneous provisions in relation to those functions, continue in force so as to enable subordinate legislation made under them to be amended or revoked, and other kinds of action to be taken in relation to the exercise of those functions, even though the provisions of GoWA under which the functions in question were conferred on the existing Assembly have been repealed by the new Bill.

Paragraph 27: First nomination of First Minister

806.     This paragraph ensures that the Assembly's duty to nominate a person for appointment as First Minister under clause 47(2)(a) is triggered by the holding of the Welsh general election in 2007.

Paragraphs 28 to 30: Transfer of functions of the Assembly to the Welsh Ministers

Paragraph 28

807.     Sub-paragraph (1) provides that, subject to the important exceptions provided for under paragraph 29, all the functions of the old Assembly are to transfer to the

Welsh Ministers at the end of the initial period (i.e. upon appointment of a First Minister).

808.     Sub-paragraph (2) provides that the functions which will transfer are functions which were exercisable by the old Assembly by virtue of an Order in Council made under section 22 of GoWA, or as a result of a designation under section 2(2) of the European Communities Act 1972 (by virtue of section 29(1) GoWA), and which were so exercisable immediately before the beginning of the day of the Welsh ordinary election 2007. If there are further functions conferred or imposed on the old Assembly before the end of the initial period, these will also be transferred to the Welsh Ministers.

Paragraph 29

809.     Sub-paragraph (1) provides for functions of the old Assembly to be excepted from the general transfer made by paragraph 28. The mechanism for achieving this is for Her Majesty to make the necessary provision by Order in Council. The kind of provision which can be made includes transfer any of the above functions specifically to the First Minister or the Counsel General instead of to "the Welsh Ministers". Functions may also be transferred to the Assembly Commission or to the Assembly itself but these may not involve functions of making, confirming or approving subordinate legislation. Such an Order in Council can also provide for functions transferred to be exercisable concurrently with another of these persons or bodies or subject to agreement of or after consultation with the Assembly Commission.

810.     Where a function is one of making, confirming or approving subordinate legislation then, although it cannot be transferred to the Assembly (since "delegated" legislation is the province of Ministers), an Order in Council can, instead, amend Schedule 5 to the Bill so as to enable the Assembly to legislate on the matter by Measure instead.

811.     The paragraph makes detailed provisions for the consents and approvals which must be obtained before an Order in Council under it can be made. For example, an Order "converting" a function of making secondary legislation which had already vested in the Welsh Ministers into an Assembly power to make Measures on the matter would require the approval of the Welsh Ministers and the Assembly, and would also have to be laid before Parliament and be subject to annulment in pursuance of a resolution of either House.

Paragraph 31: Functions transferred by Order in Council under s.22 GOWA 1998: Parliamentary and Assembly procedures

812.     Ministerial functions of making subordinate legislation conferred by Act of Parliament are, with some exceptions, subject to Parliamentary procedures. These

may either be affirmative (requiring specific Parliamentary endorsement) or negative (subject to annulment if a Parliamentary motion requires this).

813.     Subject to limited exceptions, the old Assembly, where such functions were transferred to it by Order in Council under section 22 of GoWA, is required to give specific approval to subordinate legislation made in its name. Under this Bill, these functions of making subordinate legislation under Act of Parliament will transfer to the Welsh Ministers. The Bill therefore needs to make provision for imposing on such functions equivalent Assembly procedures (affirmative or negative) or to make it clear that no such procedure at all is to apply (for example in relation to certain local or temporary orders). This is the function of this paragraph.

814.     Generally, an equivalent procedure is to apply to the Parliamentary procedures which applied, immediately before the function was transferred to the old Assembly, to the making of subordinate legislation by a Minister of the Crown. So, if a Minister of the Crown is required by the Act of Parliament in question to obtain approval of Parliament before making subordinate legislation under a particular provision of that Act, the Welsh Ministers are to be required to obtain Assembly approval instead.

815.     In some cases Parliamentary procedures will still apply, as is the case under GoWA, to certain legislation made by the Welsh Ministers, in addition to any relevant Assembly procedures. So, where an instrument contains legislation relating to an English border area or to a cross border body (if, in the latter case, the legislation relates to functions other than solely in relation to Wales) Parliamentary procedures apply. Additionally, if an Order in Council transferred a legislation making function to the old Assembly and expressly made it subject to special Parliamentary procedure or to a requirement that the order be confirmed by Act of Parliament, the exercise of that function by the Welsh Ministers etc. will be continue to be subject to that procedure.

Paragraphs 32 and 33: Functions conferred or imposed by pre-commencement enactment: Parliamentary and Assembly procedures

816.     These paragraphs deal with the different situation of functions of making subordinate legislation which were directly conferred (or imposed) on the 'old Assembly' by an enactment (usually an Act of Parliament) before the commencement of this Bill, and which are now to be exercisable by the Welsh Ministers, the First Minister or the Counsel General. They cover two distinct kinds of situations: firstly those where a Minister of the Crown has a corresponding function in relation to England to that which will be exercisable by the Welsh Ministers in relation to Wales and secondly where this is not the case, i.e. the function is unique to Wales.

817.     If there is a particular Parliamentary procedure which applies to subordinate legislation made by a Minister of the Crown in relation to England, and a corresponding function is exercisable in relation to Wales by the Welsh Ministers, then the equivalent Assembly procedure to that Parliamentary procedure (affirmative or negative as the case may be or, sometimes, the equivalent under Assembly procedures of "special Parliamentary procedure") is to apply.

818.     If Parliamentary procedures applied to a legislation making function of a Minister of the Crown and to the exercise of the corresponding function by the Welsh Ministers, the First Minister and the Counsel General, both the Parliamentary procedure and an Assembly procedure equivalent to that in will apply when the Welsh Ministers, the First Minister or the Counsel General exercise the relevant function.

819.     If, in addition, the legislation conferring the function on the old Assembly specifically imposed on the Assembly any relevant Parliamentary procedure, that requirement is to continue.

820.     Paragraph 33 provides for the procedures applying to a function of making subordinate legislation which falls into the other category of those directly conferred (or imposed) on the 'old Assembly' namely those where no Minister of the Crown has a corresponding function in relation to England.

821.     The paragraph specified what Assembly procedures are to apply in such a case.

822.     Unless a procedure is specified in relation to such function, none is to apply.

823.     If subordinate legislation is to be made by virtue of a function listed in Table 1, it is subject to being laid before and approved by a resolution of the Assembly before it is made.

824.     If subordinate legislation is made by virtue of a function listed in Table 2, it must be laid before the Assembly and can be annulled in pursuance of a resolution of the Assembly.

Paragraph 34 to 38: Transfers of Assembly functions: property, rights and liabilities

825.     These paragraphs make provision for the transfer of property, rights and liabilities of the old Assembly in connection with those functions which transfer to (or are conferred or imposed on) the Welsh Ministers, the First Minister, the Counsel General or the National Assembly Commission.

826.     Generally, property, rights and liabilities in connection with a function vest on the person or body on whom the relevant function is vested. This includes any instruments, contracts or legal proceedings (made or commenced before the transfer) in relation to a function or to property, rights and liabilities in connection with a function, except rights and liabilities under a contract of employment of a member of staff of the old Assembly.

827.     Paragraph 36 makes provision for Her Majesty, by Order in Council, to provide for the general rule above not to apply in relation to some cases, or to apply only in some cases or to apply with modifications. No recommendation can be made to Her Majesty to make such an order unless a draft of the order has been laid before and approved by a resolution of each House of Parliament and the Assembly.

828.     Paragraph 37 makes provision for the Secretary of State, by order, to provide for the transfer of property, rights or liabilities of the 'old Assembly' (but not property, rights or liabilities under a contract of employment of a member of staff of that Assembly) to the Welsh Ministers etc. or to the Assembly Commission. Either House of Parliament can, by resolution, annul an order made under this paragraph.

829.     Paragraph 38 provides that a certificate of the Secretary of State that any property has been transferred by paragraph 35 or 37 is conclusive evidence of the transfer.

830.     The paragraph further provides that transfers under paragraphs 35 and 37 have effect in relation to property, rights or liabilities to which they apply despite any provision which would otherwise prevent, penalise or restrict the transfer of the property or liabilities and that a right of pre-emption, right of return or other similar right is not to operate or become exercisable as a result of any such transfer of property or rights. Further, any such right has effect in the case of any such transfer as if the transferee were the same person in law as the transferor and as if no transfer of property had taken place.

831.     Additionally, paragraph 38 provides for just compensation to be paid to any person in respect of a right which (apart from a right of pre-emption, right of return or other similar right) would have operated in favour of (or be exercisable by) that person but which in consequence of paragraph 36 cannot subsequently operate in the person's favour (or be exercisable by the person). Any compensation payable is to be paid by the transferor, transferee or both.

832.     The Secretary of State can, by order, provide for the determination of any disputes as to whether, to whom or by whom such compensation is to be paid, and how much that compensation should be. Any such order can be annulled by a resolution of either House of Parliament.

Paragraph 39: Staff of the Assembly

833.     This paragraph provides that from the beginning of the day after the appointment of a First Minister, staff of the old Assembly are to be deemed to have been appointed as members of staff of the Welsh Assembly Government. This is subject to a power of the Secretary of State, by order, to make a scheme for the transfer of staff to the Assembly, by transferring to the Assembly Commission the rights and liabilities of listed employees under their contracts of employment.

834.     Any such transfer does not break the relevant employee's employment and the transfer scheme must provide for the terms and conditions of the employee's employment with the Commission to be no less favourable to the employee than they were immediately before the transfer.

835.     If an employee listed in the scheme objects to becoming employed by the Assembly Commission, there will be no transfer of that employee but the employee's contract will be terminated at the beginning of the day after a First minister is appointed. However, the employee will not be treated for any purpose as having been dismissed.

836.     Before making an order under this paragraph, the Secretary of State must consult the old Assembly and such an order can be annulled by a resolution of either House of Parliament.

Paragraph 40: Powers to lend money

837.     This paragraph deals with a power to lend money which was transferred to the old Assembly by an Order in Council under s. 22 GoWA and which is transferred to the Welsh Ministers under paragraph 28 of this Schedule.

838.     The paragraph provides that any sums (for the purpose of or as a result of the exercise of such a power) which would be required to be issued by the Treasury out of, or to be paid into, the National Loans Fund are to be instead charged on the Welsh Consolidated Fund (WCF) or to be paid into that Fund.

839.     Where a power was exercised by a Minister of the Crown before its transfer to the old Assembly, or was exercised by the old Assembly after transfer and the sums required were issued by the Treasury out of the National Loans Fund, the paragraph further provides that repayment of a loan is to be paid to the Welsh Ministers and by them into the WCF. However, amounts received by the Welsh Ministers in repayment of principal are treated (on the date of transfer of the power to them) as loans made to the Welsh Ministers by the Secretary of State and have to be repaid to the Secretary of State at such rates and times as the Treasury may determine. The amounts paid are to be charged on the WCF and corresponding receipts by the Secretary of State are to be paid into the National Loans Fund.

840.     There is a power for Her Majesty, by Order in Council, to disapply this paragraph in relation to any power to lend money but no recommendation to Her Majesty to make an order can be made unless a copy of the statutory instrument had been laid and approved by a resolution of each House of Parliament.

Paragraph 41: Local Government scheme

841.     This paragraph provides for the local government scheme made by the old Assembly under section 113(1) of GoWA to continue to have effect as if made under this Bill.

Paragraph 42: Voluntary sector scheme

842.     This paragraph provides for the voluntary sector scheme made by the old Assembly under section 114(1) of GoWA to continue to have effect as if made under this Bill.

Paragraph 43: Equality of opportunity arrangements

843.     This paragraph provides for equality of opportunity arrangements made by the old Assembly under section 120(1) of GoWA to continue to have effect (with appropriate modifications) as if made under this Bill.

Paragraph 44: Sustainable development scheme

844.     This paragraph provides for the sustainable development scheme made by the old Assembly under section 121(1) of GoWA to continue to have effect as if made under this Bill.

Paragraph 45 and 46: Orders in Council amending Schedule 5

845.     These paragraphs provide for clauses 94 and 95 to have effect with modifications until the beginning of the day after the day in which a First Minister is appointed.

Paragraph 47: Assembly Measures: penalties

846.     This paragraph provides that, until the coming into force of sections 281(5) and 154(1) of the Criminal Justice Act 2003, the maximum term of imprisonment which can be imposed on conviction of an offence (whether summary or triable either way) under an Assembly Measure is six months (again making provision for the different rules in relation to sentencing which apply until those provisions of the 2003 Act come into force.)