Government of Wales Bill

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Government of Wales Bill

Government of Wales Bill
Part 6 — Miscellaneous and supplementary
79

146
Transfer of responsibility
(1)
The Lord Chancellor may by order make provision—
(a)
imposing or conferring on the Welsh Ministers (or a member of the staff
of the Welsh Assembly Government) functions relating to Welsh public
records (including, in particular, functions of preserving them and of
5
making them available for inspection by the public), and
(b)
imposing on persons responsible for Welsh public records duties
relating to the selection of such records for permanent preservation, the
safe-keeping of such records and their transfer to a place specified in,
or appointed under, the order.
10
(2)
An order under this section may (in particular) make in relation to Welsh
public records provision analogous to that made by the Public Records Act
1958 (c. 51) in relation to records which are public records for the purposes of
that Act.
(3)
An order under this section may make such modifications of—
15
(a)
any enactment (including any enactment comprised in or made under
this Act) or prerogative instrument, or
(b)
any other instrument or document,

as the Lord Chancellor considers appropriate in connection with the provision
made by the order.
20
(4)
An order under this section which imposes on the Welsh Ministers (or a
member of the staff of the Welsh Assembly Government) a duty to preserve
Welsh public records, or Welsh public records of a particular description, must
include provision for the Lord Chancellor to make such arrangements as
appear appropriate for the transfer of Welsh public records, or Welsh public
25
records of that description, which are in—
(a)
the Public Record Office, or
(b)
a place of deposit appointed under the Public Records Act 1958,

to a place specified in, or appointed under, the order.
(5)
No order is to be made under this section unless the Lord Chancellor has
30
consulted the Welsh Ministers.
(6)
No order under this section which contains provisions in the form of
amendments or repeals of enactments contained in an Act is to be made unless
a draft of the statutory instrument containing it has been laid before, and
approved by a resolution of, each House of Parliament.
35
(7)
A statutory instrument containing an order under this section is (unless a draft
of the statutory instrument has been approved by a resolution of each House
of Parliament) subject to annulment in pursuance of a resolution of either
House of Parliament.
147
Meaning of “Welsh public records”
40
(1)
The following are Welsh public records—
(a)
records of the Assembly (including the Assembly constituted by the
Government of Wales Act 1998 (c. 38)) and the Assembly Commission,
(b)
administrative and departmental records belonging to Her Majesty
which are records of the Welsh Assembly Government,
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(c)
administrative and departmental records of the Auditor General,

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(d)
administrative and departmental records belonging to Her Majesty
which are records of or held in any government department which is
wholly or mainly concerned with Welsh affairs,
(e)
administrative and departmental records belonging to Her Majesty
which are records of any office, commission or other body or
5
establishment under Her Majesty’s Government which is wholly or
mainly concerned with Welsh affairs in a field or fields in which the
Welsh Ministers have functions, or the First Minister or the Counsel
General has functions,
(f)
administrative and departmental records of the bodies and
10
establishments specified in subsection (2) (but not records of health
service hospitals in Wales which are of the descriptions excepted from
being public records for the purposes of the Public Records Act 1958
(c. 51) in the case of health service hospitals in England), and
(g)
any other description of records (other than records of any court or
15
tribunal or held in any department of the Senior Courts) which is
specified by order made by the Lord Chancellor.
(2)
The bodies and establishments referred to in subsection (1)(f) are—
(a)
the Care Council for Wales,
(b)
the Countryside Council for Wales,
20
(c)
the Curriculum and Assessment Authority for Wales,
(d)
Family Practitioner Committees for localities in Wales,
(e)
the Further Education Funding Council for Wales,
(f)
the General Teaching Council for Wales,
(g)
health service hospitals, within the meaning of the National Health
25
Service Act 1977 (c. 49), in Wales,
(h)
the Higher Education Funding Council for Wales,
(i)
the Local Government Boundary Commission for Wales,
(j)
the National Council for Education and Training for Wales,
(k)
National Health Service Authorities for districts or localities in Wales,
30
or for areas in or consisting of Wales, including National Health Service
trusts all of whose hospitals, establishments and facilities are situated
in Wales,
(l)
the Qualifications, Curriculum and Assessment Authority for Wales,
(m)
the Wales Centre for Health, and
35
(n)
the Welsh Board of Health.
(3)
An order under subsection (1)(g) may be made in relation to a description of
records—
(a)
which (immediately before the order is made) are public records for the
purposes of the Public Records Act 1958, or
40
(b)
which (at that time) are not public records for those purposes.
(4)
No order under subsection (1)(g) may be made—
(a)
in relation to records within subsection (3)(a), unless the Lord
Chancellor has consulted the Welsh Ministers, and
(b)
in relation to records within subsection (3)(b), without the agreement of
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the Welsh Ministers.
(5)
A statutory instrument containing an order under subsection (1)(g) is subject
to annulment in pursuance of a resolution of either House of Parliament.

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(6)
In this section “records” includes—
(a)
written records, and
(b)
records conveying information by any other means.
Miscellaneous
148
Resolution of devolution issues
5
For provision about the resolution of devolution issues see Schedule 9.
149
Power to make consequential provision
(1)
The Secretary of State may by order make such provision as the Secretary of
State considers appropriate in consequence of—
(a)
any provision made by an Assembly Measure or Act of the Assembly,
10
(b)
any provision of subordinate legislation made, or purporting to be
made, under an Assembly Measure or Act of the Assembly,
(c)
any provision of subordinate legislation made, or purporting to be
made, by the Welsh Ministers, the First Minister or the Counsel
General, or
15
(d)
any provision of subordinate legislation made, or purporting to be
made, by any other person (not being a Minister of the Crown) in the
exercise of a function conferred or imposed by Act of Parliament where
the statutory instrument (or a draft of the statutory instrument)
containing the subordinate legislation is required to be laid before the
20
Assembly.
(2)
An order under this section may make such modifications of—
(a)
any enactment (including any enactment comprised in or made under
this Act) or prerogative instrument, or
(b)
any other instrument or document,
25

as the Secretary of State considers appropriate.
(3)
An order under this section may not make provision with respect to matters
within the legislative competence of the Scottish Parliament.
(4)
An order under this section may make provision having retrospective effect.
(5)
No order under this section which contains provisions in the form of
30
amendments or repeals of enactments contained in an Act is to be made unless
a draft of the statutory instrument containing it has been laid before, and
approved by a resolution of, each House of Parliament.
(6)
A statutory instrument containing an order under this section is (unless a draft
of the statutory instrument has been approved by a resolution of each House
35
of Parliament) subject to annulment in pursuance of a resolution of either
House of Parliament.
(7)
In subsection (1) “made” includes confirmed or approved.
150
Power to remedy ultra vires acts
(1)
Her Majesty may by Order in Council make such provision as Her Majesty
40
considers appropriate in consequence of—

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(a)
an Assembly Measure or Act of the Assembly, or any provision of an
Assembly Measure or Act of the Assembly, which is not, or may not be,
within the Assembly’s legislative competence, or
(b)
any purported exercise by any person of a function conferred or
imposed by or under an Assembly Measure or Act of the Assembly
5
which is not, or may not be, an exercise or proper exercise of that
function.
(2)
An Order in Council under this section may make such modifications of—
(a)
any enactment (including any enactment comprised in or made under
this Act) or prerogative instrument, or
10
(b)
any other instrument or document,

as Her Majesty considers appropriate.
(3)
An Order in Council under this section may make provision having
retrospective effect.
(4)
No recommendation is to be made to Her Majesty in Council to make an Order
15
in Council under this section which contains provisions in the form of
amendments or repeals of enactments contained in an Act 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.
(5)
A statutory instrument containing an Order in Council under this section is
20
(unless a draft of the statutory instrument has been approved by a resolution
of each House of Parliament) subject to annulment in pursuance of a resolution
of either House of Parliament.
151
Intervention in case of functions relating to water etc.
(1)
This section applies where it appears to the Secretary of State that the exercise
25
of a relevant function (or the failure to exercise a relevant function) in any
particular case might have a serious adverse impact on—
(a)
water resources in England,
(b)
water supply in England, or
(c)
the quality of water in England.
30
(2)
The Secretary of Secretary may intervene under this paragraph in that case, so
that—
(a)
the Secretary of State may in that case exercise the function, and
(b)
the person or persons on whom the function is conferred or imposed
may not in that case exercise the function.
35
(3)
“Relevant function” means—
(a)
a function conferred or imposed on any person by or under an
Assembly Measure or Act of the Assembly, or
(b)
a function which is not so conferred or imposed but is exercisable by the
Welsh Ministers, the First Minister or the Counsel General.
40
(4)
An intervention by the Secretary of State under this section in relation to a
function is to be made by giving notice to the person or persons on whom it is
conferred or imposed.
(5)
The notice—
(a)
must state the reason for the Secretary of State’s intervention,
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(b)
may make provision about the effect of any steps previously taken by
the person or persons on whom the function is conferred or imposed,
and
(c)
may extend the time for the taking of any steps by the Secretary of State
or any other person (even if the time for taking them would otherwise
5
have expired before the notice is given).
(6)
Where an intervention has been made under this section in a case, the Secretary
of State must, in addition to the notice under subsection (4), give notice to—
(a)
any person who has previously been given notice of any steps taken, or
proposed to be taken, in the case,
10
(b)
the Environment Agency, if concerned in the case, and
(c)
any water undertaker or sewerage undertaker concerned in the case.
152
Power to vary retrospective decisions
(1)
This section applies where any court or tribunal decides—
(a)
that an Assembly Measure or Act of the Assembly, or any provision of
15
an Assembly Measure or Act of the Assembly, is outside the
Assembly’s legislative competence, or
(b)
that any provision of subordinate legislation made, or purporting to be
made, by the Welsh Ministers, the First Minister or the Counsel General
is outside the powers under which it was, or purported to be, made.
20
(2)
The court or tribunal may make an order—
(a)
removing or limiting any retrospective effect of the decision, or
(b)
suspending the effect of the decision for any period and on any
conditions to allow the defect to be corrected.
(3)
In determining whether to make an order under this section, the court or
25
tribunal must (among other things) have regard to the extent to which persons
who are not parties to the proceedings would otherwise be adversely affected
by the decision.
(4)
Where a court or tribunal is considering whether to make an order under this
section, it must order notice (or intimation) of that fact to be given to the
30
persons specified in subsection (5) (unless a party to the proceedings).
(5)
The persons mentioned in subsection (4) are—
(a)
in relation to proceedings in England and Wales, the Attorney General
and the Counsel General,
(b)
in relation to proceedings in Scotland, the Advocate General for
35
Scotland, and
(c)
in relation to proceedings in Northern Ireland, the Advocate General
for Northern Ireland.
(6)
A person to whom notice (or intimation) is given in pursuance of subsection (4)
may take part as a party in the proceedings, so far as they relate to the making
40
of the order.
(7)
In deciding any question as to costs or expenses, the court or tribunal may—
(a)
take account of any additional expense which it considers that any
party to the proceedings has incurred as a result of the participation of
any person in pursuance of subsection (6), and
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(b)
award the whole or part of the additional expense as costs or expenses
to the party who incurred it (whether or not it makes an order under
this section and whatever the terms of any such order it does make).
(8)
Any power to make provision for regulating the procedure before any court or
tribunal includes power to make provision for the purposes of this section
5
including, in particular, provision for determining the manner in which and
the time within which any notice (or intimation) is to be given.
(9)
In subsection (1)(b) “made” includes confirmed or approved.
153
Interpretation of legislation
(1)
This section applies to—
10
(a)
any provision of an Assembly Measure, or proposed Assembly
Measure, which could be read in such a way as to be outside the
Assembly’s legislative competence,
(b)
any provision of an Act of the Assembly, or a Bill for such an Act, which
could be read in such a way as to be outside the Assembly’s legislative
15
competence, and
(c)
any provision of subordinate legislation made, or purporting to be
made, under an Assembly Measure or Act of the Assembly which could
be read in such a way as to be outside the powers under which it was,
or purported to be, made.
20
(2)
The provision is to be read as narrowly as is required for it to be within
competence or within the powers, if such a reading is possible, and is to have
effect accordingly.
(3)
In subsection (1)(c) “made” includes confirmed or approved.
154
Functions exercisable in relation to Wales
25
(1)
Her Majesty may by Order in Council specify functions which are to be treated
for such purposes of this Act as may be specified in the Order in Council—
(a)
as being, or as not being, functions which are exercisable by the Welsh
Ministers, the First Minister or the Counsel General, or
(b)
as being, or as not being, functions which are exercisable in relation to
30
Wales.
(2)
A statutory instrument containing an Order in Council under this section is
subject to annulment in pursuance of a resolution of either House of
Parliament.
155
English and Welsh texts of legislation
35
(1)
The English and Welsh texts of—
(a)
any Assembly Measure or Act of the Assembly which is in both English
and Welsh when it is enacted, or
(b)
any subordinate legislation which is in both English and Welsh when it
is made,
40

are to be treated for all purposes as being of equal standing.
(2)
The Welsh Ministers may by order provide in respect of any Welsh word or
phrase that, when it appears in the Welsh text of any Assembly Measure or Act

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of the Assembly, or any subordinate legislation made by the Welsh Ministers,
it is to be taken as having the same meaning as the English word or phrase
specified in relation to it in the order.
(3)
No order is to be made under subsection (2) unless a draft of the statutory
instrument containing it has been laid before, and approved by a resolution of,
5
the Assembly.
(4)
An Assembly Measure or Act of the Assembly, or any subordinate legislation
made by the Welsh Ministers, is to be construed in accordance with any order
under subsection (2); but this is subject to anything to the contrary contained
in the Assembly Measure, Act of the Assembly or subordinate legislation.
10
(5)
This section applies in relation to subordinate legislation made by the First
Minister or the Counsel General as in relation to subordinate legislation made
by the Welsh Ministers.
Supplementary
156
Orders and directions
15
(1)
Any power of a Minister of the Crown or the Welsh Ministers under this Act to
make an order is exercisable by statutory instrument.
(2)
Any such power and any power under this Act to make an Order in Council—
(a)
may be exercised so as to make different provision for different cases or
classes of case or different purposes,
20
(b)
may be exercised so as to make provision which applies generally or
subject to specified exemptions or exceptions or only in relation to
specific cases or classes of case, and
(c)
includes power to make supplementary, incidental, consequential,
transitory, transitional or saving provision.
25
(3)
Any power conferred by this Act to give a direction includes power to vary or
revoke the direction.
157
Interpretation
(1)
In this Act (except where the context otherwise requires)—
“Community law” means—
30
(a)
all the rights, powers, liabilities, obligations and restrictions
from time to time created or arising by or under the Community
Treaties, and
(b)
all the remedies and procedures from time to time provided for
by or under the Community Treaties,
35
“the Convention rights” has the same meaning as in the Human Rights
Act 1998 (c. 42),
“cross-border body” means any body (including a government
department) or undertaker exercising functions, or carrying on
activities, in or with respect to Wales (or any part of Wales) and
40
anywhere else,
“enactment” includes an Assembly Measure, an Act of the Assembly and
subordinate legislation,