Government of Wales Bill

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Government of Wales Bill

Government of Wales Bill
Schedule 11 — Transitional provisions
168

      (6)
Where a function is delegated under sub-paragraph (5), arrangements for
the exercise of the function are to be made by the person who, immediately
before the beginning of the initial period, was the Permanent Secretary to the
Assembly for the purposes of section 63(2) of Government of Wales Act 1998
(c. 38).
5
      (7)
The delegation of any function under this paragraph does not prevent the
exercise of the function by the person by whom the delegation is made.
      (8)
The exercise of any function in accordance with this paragraph is subject to
any condition, limitation or restriction which applied to the exercise of that
function immediately before the beginning of the initial period.
10
22    (1)
This paragraph applies to functions of the Assembly constituted by the
Government of Wales Act 1998 which, immediately before the beginning of
the initial period, were delegated under section 62 of that Act to the
committee of the Assembly referred to in the standing orders made under
that Act as the House Committee.
15
      (2)
Functions to which this paragraph applies are exercisable—
(a)
by the person who, immediately before the beginning of the initial
period, held office as the presiding officer of the Assembly
constituted by the Government of Wales Act 1998, if that person is a
member of that Assembly, or
20
(b)
by the person who, at that time, held the post referred to in the
standing orders made under that Act as the Clerk to the Assembly, if
the person mentioned in paragraph (a) is not a member of that
Assembly (or if the office of presiding officer was vacant at that
time).
25
      (3)
Functions which are exercisable by virtue of sub-paragraph (2) may be
delegated by the person by whom they are exercisable (to such extent as that
person may determine) to members of the staff of the Assembly constituted
by the Government of Wales Act 1998.
      (4)
Where a function is delegated under sub-paragraph (3), arrangements for
30
the exercise of the function are to be made by the person who, immediately
before the beginning of the initial period, was the Permanent Secretary to the
Assembly for the purposes of section 63(2) of Government of Wales Act
1998.
      (5)
The delegation of any function under sub-paragraph (3) does not prevent
35
the exercise of the function by the person by whom the delegation is made.
      (6)
The exercise of any function in accordance with this paragraph is subject to
any condition, limitation or restriction which applied to the exercise of that
function immediately before the beginning of the initial period.
23    (1)
Where a function of making, confirming or approving subordinate
40
legislation is exercised during the initial period in accordance with
paragraph 21, it is to be made, confirmed or approved by being signed by
the person by whom the function is exercised.
      (2)
Despite sub-paragraph (8) of paragraph 21, nothing contained in the
following provisions, or included in the standing orders of the Assembly
45
constituted by the Government of Wales Act 1998 by virtue of the following
provisions, applies to subordinate legislation made in accordance with that
paragraph—

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(a)
section 65 (regulatory appraisals),
(b)
sections 66 and 67 (procedure), and
(c)
section 68 (financial initiative).
      (3)
But as soon as is reasonably practicable after the end of the initial period the
Clerk must lay before the Assembly every statutory instrument containing
5
subordinate legislation made, confirmed or approved in accordance with
paragraph 21.
Saving for existing instruments conferring or imposing functions
24    (1)
Orders in Council under section 22 of the Government of Wales Act 1998
(c. 38) which are in force immediately before the commencement of the
10
repeal of that section by this Act continue to have effect despite the
commencement of that repeal (and may be varied or revoked accordingly).
      (2)
Accordingly—
(a)
the reference in paragraph 5 of Schedule 3 to section 58 of this Act
includes a reference to section 22 of the Government of Wales Act
15
1998, and
(b)
the reference in paragraph 7(2) of that Schedule to an Order in
Council under section 58 of this Act which includes provision
transferring a function to the Welsh Ministers, the First Minister or
the Counsel General includes a reference to an Order in Council
20
under section 22 of the Government of Wales Act 1998 which
includes provision having that effect by virtue of this Schedule.
25
Orders under section 27 of the Government of Wales Act 1998 which are in
force immediately before the commencement of the repeal of that section by
this Act continue to have effect despite the commencement of that repeal.
25
26    (1)
Designations made under section 2(2) of the European Communities Act
1972 (c. 68) by virtue of subsection (1) of section 29 of the Government of
Wales Act 1998 which are in force immediately before the commencement of
the repeal of that subsection by this Act continue to have effect despite the
commencement of that repeal (and may be varied or revoked accordingly).
30
      (2)
Regulations made under section 56 of the Finance Act 1973 (c. 51) by virtue
of subsection (4) of that section which are in force immediately before the
commencement of the repeal of that subsection by this Act continue to have
effect despite the commencement of that repeal (and may be varied or
revoked accordingly).
35
First nomination of First Minister
27
The reference in section 47(2)(a) to the holding of a poll at a general election
includes a reference to the holding of the poll at the 2007 election.
Transfer of Assembly functions
28    (1)
Subject to paragraph 29, the relevant Assembly functions are transferred to
40
the Welsh Ministers immediately after the end of the initial period.
      (2)
“The relevant Assembly functions” means functions exercisable by the
Assembly constituted by the Government of Wales Act 1998—

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(a)
immediately before the beginning of the initial period, by virtue of an
Order in Council under section 22 of the Government of Wales Act
1998 (c. 38),
(b)
immediately before the beginning of that period, as a result of a
designation made under section 2(2) of the European Communities
5
Act 1972 (c. 68) by virtue of subsection (1) of section 29 of the
Government of Wales Act 1998,
(c)
as a result of having been conferred or imposed on it before the end
of the initial period by an enactment contained in an Act, other than
an enactment contained in the Government of Wales Act 1998, or by
10
a prerogative instrument, or
(d)
as a result of having been conferred or imposed on it before the end
of the initial period by subordinate legislation (including
subordinate legislation made under the Government of Wales Act
1998).
15
29    (1)
Her Majesty may by Order in Council provide for—
(a)
the transfer of any of the relevant Assembly functions to—
(i)
the First Minister, or
(ii)
the Counsel General,
(b)
the transfer of any of the relevant Assembly functions, other than
20
functions of making, confirming or approving subordinate
legislation, to the Assembly Commission, or
(c)
any of the relevant Assembly functions, other than functions of
making, confirming or approving subordinate legislation, to be
functions of the Assembly.
25
      (2)
Her Majesty may by Order in Council provide for any relevant Assembly
function that is a function of making, confirming or approving subordinate
legislation in relation to any matter not to be transferred to the Welsh
Ministers and, unless the Assembly already has power to pass Assembly
Measures in relation to that matter, amend Part 1 of Schedule 5 to enable the
30
Assembly to have such power instead.
      (3)
Her Majesty may by Order in Council—
(a)
direct that any function transferred by paragraph 28 is to be
exercisable by any one or more of the First Minister, the Counsel
General, the Assembly Commission and the Assembly concurrently
35
with the Welsh Ministers,
(b)
direct that any function in relation to which provision is made by
virtue of sub-paragraph (1) for it to be transferred to, or continue to
be a function of, any person or body is to be exercisable by any other
person or body specified in that sub-paragraph concurrently with
40
that person or body, or
(c)
direct that any function transferred by paragraph 28, or transferred
to the First Minister or the Counsel General by virtue of sub-
paragraph (1), is to be exercisable by the Welsh Ministers, the First
Minister or the Counsel General only with the agreement of, or after
45
consultation with, the Assembly Commission.
      (4)
An Order in Council under this paragraph may make such modifications
of—
(a)
any enactment (including any enactment comprised in or made
under this Act) or prerogative instrument, or
50

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171

(b)
any other instrument or document,

as Her Majesty considers appropriate in connection with the provision made
by the Order in Council.
      (5)
No recommendation is to be made to Her Majesty in Council to make an
Order in Council under sub-paragraph (1) or (3) in relation to a function
5
which has already been transferred to the Welsh Ministers, the First Minister
or the Counsel General without the consent of those persons or that person
to the recommendation.
      (6)
No recommendation is to be made to Her Majesty in Council to make an
Order in Council under sub-paragraph (2) unless a draft of the statutory
10
instrument containing the Order in Council has been laid before, and
approved by a resolution of, the Assembly; and a statutory instrument
containing an Order in Council under that sub-paragraph is subject to
annulment in pursuance of a resolution of either House of Parliament.
      (7)
No recommendation is to be made to Her Majesty in Council to make an
15
Order in Council under this paragraph (apart from an Order in Council
under sub-paragraph (2)) unless a draft of the statutory instrument
containing the Order in Council has been laid before, and approved by a
resolution of, each House of Parliament.
      (8)
But sub-paragraph (7) does not apply if the Assembly has resolved that a
20
recommendation should be made to Her Majesty in Council to make the
Order in Council.
30    (1)
This paragraph applies so far as may be necessary for the purpose or in
consequence of the exercise of any functions of—
(a)
the Welsh Ministers,
25
(b)
the First Minister,
(c)
the Counsel General,
(d)
the Assembly Commission, or
(e)
the Assembly constituted by this Act,

which are made exercisable by them by or by virtue of paragraph 28 or 29.
30
      (2)
Any relevant reference to the Assembly constituted by the Government of
Wales Act 1998 (c. 38) is to be construed as being or including a reference
to—
(a)
the Welsh Ministers,
(b)
the First Minister,
35
(c)
the Counsel General,
(d)
the Assembly Commission, or
(e)
the Assembly constituted by this Act,

(according to by whom the function in question is, or is to be, exercised).
      (3)
In sub-paragraph (2) “relevant reference to the Assembly constituted by the
40
Government of Wales Act 1998” means—
(a)
a reference in any enactment, prerogative instrument or other
document to that Assembly or,
(b)
a reference in any enactment or other document which, immediately
before the commencement of the repeal by this Act of section 43 of
45
the Government of Wales Act 1998, had effect as a reference to that
Assembly.

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Functions transferred by Order in Council under section 22 of the Government of Wales Act
1998 (c. 38): Parliamentary and Assembly procedure
31    (1)
This paragraph applies where—
(a)
a function to make subordinate legislation was transferred to, or
made exercisable by, the Assembly constituted by the Government
5
of Wales Act 1998 by an Order in Council under section 22 of that
Act, and
(b)
the function has been transferred to, or made exercisable by, the
Welsh Ministers, the First Minister or the Counsel General by or by
virtue of paragraph 28 or 29.
10
      (2)
If, immediately before the coming into force of the provisions of the Order
in Council relating to the function, a provision of any of the descriptions
specified in sub-paragraph (3) applied to its exercise by a Minister of the
Crown—
(a)
that provision does not apply to its exercise by the Welsh Ministers,
15
the First Minister or the Counsel General unless the case is one to
which sub-paragraph (6) applies, but
(b)
(whether or not the case is one to which that sub-paragraph applies)
that provision has effect in relation to its exercise by the Welsh
Ministers, the First Minister or the Counsel General as if any
20
reference in it to Parliament or either House of Parliament were (or,
if it is such a case, included) a reference to the Assembly.
      (3)
The descriptions of provision referred to in sub-paragraph (2) are—
(a)
provision requiring any instrument made in the exercise of the
function, or a draft of any such instrument, to be laid before
25
Parliament or either House of Parliament,
(b)
provision for the annulment or approval of any such instrument or
draft by or in pursuance of a resolution of either House of Parliament
or of each House, and
(c)
provision prohibiting the making of any such instrument without
30
such approval.
      (4)
If, immediately before the coming into force of the provisions of the Order
in Council relating to the function, a provision of either of the descriptions
specified in sub-paragraph (5) applied to its exercise by a Minister of the
Crown—
35
(a)
that provision does not apply to its exercise by the Welsh Ministers,
the First Minister or the Counsel General unless the case is one to
which sub-paragraph (6) or (7) applies, but
(b)
(whether or not the case is one to which either of those sub-
paragraphs applies) any instrument made in the exercise of the
40
function by the Welsh Ministers, the First Minister or the Counsel
General is (or, if it is such a case, is also) subject to the procedure in
the Assembly specified by the standing orders.
      (5)
The descriptions of provision referred to in sub-paragraph (4) are—
(a)
provision for any instrument made in the exercise of the function to
45
be a provisional order (that is, an order which requires to be
confirmed by Act of Parliament), and
(b)
provision requiring any order (within the meaning of the Statutory
Orders (Special Procedure) Act 1945 (9 & 10 Geo. 6 c. 18)) made in

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173

the exercise of the function to be subject to special parliamentary
procedure.
      (6)
This sub-paragraph applies in any case if the instrument made in the
exercise of the function or (if provision specified in sub-paragraph (3)(a) or
(b) applied to a draft of an instrument made in the exercise of the function)
5
a draft of an instrument to be so made—
(a)
contains subordinate legislation made or to be made by a Minister of
the Crown or government department (whether or not jointly with
the Welsh Ministers, the First Minister or the Counsel General),
(b)
contains (or confirms or approves) subordinate legislation relating to
10
an English border area, or
(c)
contains (or confirms or approves) subordinate legislation relating to
a cross-border body (and not relating only to the exercise of
functions, or the carrying on of activities, by the body in or with
respect to Wales or a part of Wales).
15
      (7)
This sub-paragraph applies in any case if, immediately before the coming
into force of the provisions of the Order in Council relating to the function,
a provision of the description specified in sub-paragraph (5)(b) applied to an
instrument made in exercise of the function by a Minister of the Crown and
the Order in Council provided that—
20
(a)
any order made by the Assembly constituted by the Government of
Wales Act 1998 (c. 38) in the exercise of the function, or
(b)
any order so made in circumstances including those of the case,

is to be subject to special parliamentary procedure.
      (8)
In this paragraph “make” includes confirm or approve and related
25
expressions (except “made exercisable”) are to be construed accordingly; but
an instrument (or draft) does not fall within sub-paragraph (6)(a) just
because it contains subordinate legislation made (or to be made) by the
Welsh Ministers, the First Minister or the Counsel General with the
agreement of a Minister of the Crown or government department.
30
Functions conferred or imposed by pre-commencement enactment: Parliamentary and
Assembly procedure
32    (1)
This paragraph applies where—
(a)
a function to make subordinate legislation was conferred or imposed
on the Assembly constituted by the Government of Wales Act 1998
35
by a pre-commencement enactment (“the Welsh function”),
(b)
the Welsh function has been transferred to the Welsh Ministers, the
First Minister or the Counsel General by or by virtue of paragraph 28
or 29, and
(c)
when the Welsh function was transferred, a Minister of the Crown
40
had the same or substantially the same function exercisable in
relation to England (“the corresponding function”).
      (2)
If, immediately after the transfer of the Welsh function, a provision of any of
the descriptions specified in sub-paragraph (4)—
(a)
applied to the exercise of the corresponding function by the Minister
45
of the Crown, but
(b)
did not apply to the exercise of the Welsh function by the Welsh
Ministers, the First Minister or the Counsel General,

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the provision applies to any exercise of the Welsh function by the Welsh
Ministers, the First Minister or the Counsel General as if any reference in it
to Parliament or either House of Parliament were a reference to the
Assembly.
      (3)
If, immediately after the transfer of the Welsh function, a provision of any of
5
the descriptions specified in sub-paragraph (4) applied to both—
(a)
the exercise of the corresponding function by the Minister of the
Crown, and
(b)
the exercise of the Welsh function by the Welsh Ministers, the First
Minister or the Counsel General,
10

the provision applies to any exercise of the Welsh function by the Welsh
Ministers, the First Minister or the Counsel General as if any reference in it
to Parliament or either House of Parliament were a reference both to the
Assembly and to Parliament or either House of Parliament.
      (4)
The descriptions of provision referred to in sub-paragraphs (2) and (3) are—
15
(a)
provision requiring any instrument made in the exercise of the
function, or a draft of any such instrument, to be laid before
Parliament or either House of Parliament,
(b)
provision for the annulment or approval of any such instrument or
draft by or in pursuance of a resolution of either House of Parliament
20
or of both Houses, and
(c)
provision prohibiting the making of any such instrument without
such approval.
      (5)
If, immediately after the transfer of the Welsh function, a provision of either
of the descriptions specified in sub-paragraph (7)—
25
(a)
applied to the exercise of the corresponding function by the Minister
of the Crown, but
(b)
did not apply to the exercise of the Welsh function by the Welsh
Ministers, the First Minister or the Counsel General,

an instrument made in any exercise of the Welsh function by the Welsh
30
Ministers, the First Minister or the Counsel General is subject to the
procedure in the Assembly specified by the standing orders.
      (6)
If, immediately after the transfer of the Welsh function, a provision of either
of the descriptions specified in sub-paragraph (7) applied to both—
(a)
the exercise of the corresponding function by the Minister of the
35
Crown, and
(b)
the exercise of the Welsh function by the Welsh Ministers, the First
Minister or the Counsel General,

the instrument made in any exercise of the Welsh function by the Welsh
Ministers, the First Minister or the Counsel General is subject to that
40
provision and to the procedure in the Assembly specified by the standing
orders.
      (7)
The descriptions of provision referred to in sub-paragraphs (5) and (6) are—
(a)
provision for any instrument made in the exercise of the function to
be a provisional order (that is, an order which requires to be
45
confirmed by Act of Parliament), and
(b)
provision requiring any order (within the meaning of the Statutory
Orders (Special Procedure) Act 1945 (9 & 10 Geo. 6 c. 18)) made in