A new Magna Carta? - Political and Constitutional Reform Contents


PART VI

DEVOLUTION AND LOCAL GOVERNMENT

Chapter 21: SCOTLAND

113 The Scottish Parliament [480]

(1) There shall be a Scottish Parliament.

(2) One member of the Parliament shall be returned for each constituency (under the simple majority system) at an election held in the constituency.

(3) Members of the Parliament for each region shall be returned at a general election under the additional member system of proportional representation provided for in this Part and vacancies among such members shall be filled in accordance with Part 1 of the Scotland Act 1998 (c.46).

(4) The validity of any proceedings of the Parliament is not affected by any vacancy in its membership.

114 Elections for membership of the Scottish Parliament

(1) The day on which the poll at the first ordinary general election for membership of the Parliament shall be held, and the day, time and place for the meeting of the Parliament following that poll, shall be appointed by order made by the Secretary of State. [481]

(2) The poll at subsequent ordinary general elections shall be held on the first Thursday in May in the fourth calendar year following that in which the previous ordinary general election was held, unless the day of the poll is determined by a proclamation under subsection (5). [482]

(3) If the poll is to be held on the first Thursday in May, the Parliament—

(a) is dissolved by virtue of this section at the beginning of the minimum period which ends with that day, and

(b) shall meet within the period of seven days beginning immediately after the day of the poll. [483]

(4) In subsection (3), "the minimum period" means the period determined in accordance with an order under section 12(1) of the Scotland Act 1998 (c.46). [484]

(5) If the Presiding Officer proposes a day for the holding of the poll which is not more than one month earlier, nor more than one month later, than the first Thursday in May, Her Majesty may by proclamation under the Scottish Seal—

(a) dissolve the Parliament,

(b) require the poll at the election to be held on the day proposed, and

(c) require the Parliament to meet within the period of seven days beginning immediately after the day of the poll. [485]

(6) In this Constitution "the Scottish Seal" means Her Majesty's Seal appointed by the Treaty of Union to be kept and used in Scotland in place of the Great Seal of Scotland. [486]

(7) The Presiding Officer shall propose a day for the holding of a poll if—

(a) the Parliament resolves that it should be dissolved and, if the resolution is passed on a division, the number of members voting in favour of it is not less than two-thirds of the total number of seats for members of the Parliament, or

(b) any period during which the Parliament is required under section 46 of the Scotland Act 1998 (c.46) to nominate one of its members for appointment as First Minister ends without such a nomination being made. [487]

(8) If the Presiding Officer makes such a proposal, Her Majesty may by proclamation under the Scottish Seal—

(a) dissolve the Parliament and require an extraordinary general election to be held,

(b) require the poll at the election to be held on the day proposed, and

(c) require the Parliament to meet within the period of seven days beginning immediately after the day of the poll. [488]

(9) If a poll is held under this section within the period of six months ending with the day on which the poll at the next ordinary general election would be held (disregarding subsection 5, above), that ordinary general election shall not be held. [489]

(10) Subsection (9) does not affect the year in which the subsequent ordinary general election is to be held. [490]

(11) At a general election, the candidates may stand for return as constituency members or regional members. [491]

(12) A person may not be a candidate to be a constituency member for more than one constituency. [492]

(13) The candidates to be regional members shall be those included in a list submitted under subsection (14) or individual candidates. [493]

(14) Any registered political party may submit to the regional returning officer a list of candidates to be regional members for a particular region (referred to in this Constitution, in relation to the region, as the party's "regional list"). [494]

(15) A registered political party's regional list has effect in relation to the general election and any vacancy occurring among the regional members after that election and before the next general election. [495]

(16) Not more than twelve persons may be included in the list (but the list may include only on person). [496]

(17) A registered political party's regional list must not include a person—

(a) who is included in any other list submitted under subsection (14) for the region or any list submitted under that subsection for another region,

(b) who is an individual candidate to be a regional member for the region or another region,

(c) who is a candidate to be a constituency member for a constituency not included in the region, or

(d) who is a candidate to be a constituency member for a constituency included in the region but is not a candidate of that party. [497]

(18) A person may not be an individual candidate to be a regional member for a particular region if he is—

(a) included in a list submitted under subsection (14) for the region or another region,

(b) an individual candidate to be a regional member for another region,

(c) a candidate to be a constituency member for a constituency not included in the region, or

(d) a candidate of any registered political party to be a constituency member for a constituency included in the region. [498]

(19) In this Constitution, "registered political party" means a party registered under Part II of the Political Parties, Elections and Referendums Act 2000. [499]

Polls for regional members

(20) In each of the constituencies for the Parliament, a poll shall be held at which each person entitled to vote as elector may give a vote (referred to in this Constitution as a "regional vote") for—

(a) a registered political party which has submitted a regional list, or

(b) an individual candidate to be a regional member for the region. [500]

(21) The right conferred on a person by subsection (20) is in addition to any right the person may have to vote in any poll for the return of a constituency member. [501]

(22) The persons who are to be returned as constituency members for constituencies included in the region must be determined before the persons who are to be returned as the regional members for the region. [502]

(23) For each registered political party which has submitted a regional list, the regional figure for the purposes of subsections (26) to (34) is—

(a) the total number of regional votes given for the party in all the constituencies included in the region, divided by

(b) the aggregate of one plus the number of candidates of the party returned as constituency members for any of those constituencies. [503]

(24) Each time a seat is allocated to the party under subsections (26) to (34) below, that figure shall be recalculated by increasing (or further increasing) the aggregate in subsection (23)(b) by one. [504]

(25) For each individual candidate to be a regional member for the region, the regional figure for the purposes of subsections (26) to (34) below is the total number of regional votes given for him in all the constituencies included in the region. [505]

(26) The first regional member seat shall be allocated to the registered political party or individual candidate with the highest regional figure. [506]

(27) The second and subsequent regional member seats shall be allocated to the registered political party or individual candidate with the highest regional figure, after any recalculation required by subsection (24) has been carried out. [507]

(28) An individual candidate already returned as a constituency or regional member shall be disregarded. [508]

(29) Seats for the region which are allocated to a registered political party shall be filled by the persons in the party's regional list in the order in which they appear in the list. [509]

(30) For the purposes of this section, a person in a registered political party's regional list who is returned as a member of the Parliament shall be treated as ceasing to be in the list (even if his return is void). [510]

(31) Once a party's regional list has been exhausted (by the return of persons included in it as constituency members or by the previous application of subsection (26) or (27)) the party shall be disregarded. [511]

(32) If (on the application of subsection (26) or any application of subsection (27)) the highest regional figure is the regional figure of two or more parties or individual candidates-

(a) the subsection in question shall apply to each of them; or

(b) if paragraph (a) would result in more than the correct number of seats for the region being allocated, the subsection in question shall apply as if the regional figure for each of those parties or candidates had been adjusted in accordance with subsection (33). [512]

(33) The regional figure for a party or candidate is adjusted in accordance with this subsection by—

(a) adding one vote to the total number of regional votes given for the party or candidate in all the constituencies included in the region; and

(b) (in the case of a party) recalculating the regional figure accordingly. [513]

(34) If, on the application of the subsection in question in accordance with subsection (32)(b), seats would be allocated to two or more parties or individual candidates and that would result in more than the correct number of seats for the region being allocated, the regional returning officer shall decide between them by lot. [514]

Constituency vacancies [515]

(35) Where the seat of a constituency member is vacant, an election shall be held to fill the vacancy (subject to subsection (38)).

(36) The date of the poll shall be fixed by the Presiding Officer.

(37) The date shall fall within the period of three months—

(a) beginning with the occurrence of the vacancy, or

(b) if the vacancy does not come to the notice of the Presiding Officer within the period of one month beginning with its occurrence, beginning when it does come to his notice.

(38) The election shall not be held if the latest date for holding the poll would fall within the period of three months ending with the day on which the poll at the next ordinary general election would be held (disregarding subsection (5), above).

(39) For the purposes of this section, the date on which a vacancy is to be treated as occurring shall be determined under standing orders.

(40) A person may not be a candidate at such an election if he is a member of the Parliament or a candidate in another election to fill a vacancy.

Regional vacancies [516]

(41) This section applies where the seat of a regional member is vacant.

(42) If the regional member was returned as an individual candidate, or the vacancy is not filled in accordance with the following provisions, the seat shall remain vacant until the next general election.

(43) If the regional member was returned (under this section) from a registered political party's regional list, the regional returning officer shall notify the Presiding Officer of the name of the person who is to fill the vacancy.

(44) The regional returning officer shall ascertain from that party's regional list the name and address of the person whose name appears highest on that list ("the first choice") and shall take such steps as appear to him to be reasonable to contact the first choice to ask whether he will—

(a) state in writing that he is willing and able to serve as a regional member for that region; and

(b) deliver a certificate signed by or on behalf of the nominating officer of the registered party which submitted that regional list stating that the first choice may be returned as a regional member from that list.

(45) Where—

(a) within such period as the regional returning officer considers reasonable—

(i) he decides that the steps he has taken to contact the first choice have been unsuccessful; or

(ii) he has not received from that person the statement and certificate referred to in subsection (44); or

(b) the first choice has—

(i) stated in writing that he is not willing to serve as a regional member for that region; or

(ii) failed to deliver the certificate referred to in subsection (44)(b),

the regional returning officer shall repeat the procedure required by subsection (44) in respect of the person (if any) whose name appears next in that list ("the second choice") or, where paragraph (a) or (b) of this subsection applies in respect of that person, in respect of the person (if any) whose name appears next highest after the second choice in that list; and the regional returning officer shall continue to repeat the procedure until the regional returning officer has notified the Presiding Officer of the name of the person who is to fill the vacancy or the names in the list are exhausted.

(46) Where a person whose name appears on that list provides the statement and certificate referred to in subsection (44), the regional returning officer shall notify to the Presiding Officer the name of that person.

(47) Where—

(a) under subsection (45), the regional returning officer has asked the second choice or a subsequent choice the questions referred to in subsection (44); and

(b) the person who was asked those questions on an earlier occasion then provides the statement and certificate referred to in that subsection,

that statement and certificate shall have no effect unless and until the circumstances described in paragraph (a) or (b) of subsection (45) apply in respect of the second choice or, as the case may be, of the subsequent choice.

(48) Where a person's name has been notified under subsection (43), this Constitution shall apply as if he had been declared to be returned as a regional member for the region on the day on which notification of his name was received by the Presiding Officer.

(49) For the purposes of this section, the date on which a vacancy is to be treated as occurring shall be determined under standing orders.

Term of office of members [517]

(50) The term of office of a member of the Parliament begins on the day on which the member is declared to be returned and ends with the dissolution of the Parliament.


Resignation of members [518]

(51) A member of the Parliament may at any time resign his seat by giving notice in writing to the Presiding Officer.

Disqualification from membership of the Parliament and exceptions [519]

(52) A person is disqualified from being a member of the Parliament (subject to the following subsections) if—

(a) he is disqualified from being a member of the House of Commons under paragraphs (a) to (e) of section 1(1) of the House of Commons Disqualification Act 1975 (judges, civil servants, members of the armed forces, members of police forces and members of foreign legislatures),

(b) he is disqualified otherwise than under that Act (either generally or in relation to a particular parliamentary constituency) from being a member of the House of Commons or from sitting and voting in it, or

(d) he is an office-holder of a description specified in an Order in Council made by Her Majesty under this subsection.

(53) An office-holder of a description specified in an Order in Council made by Her Majesty under this section is disqualified from being a member of the Parliament for any constituency or region of a description specified in the Order in relation to the office-holder.

(54) In this section "office-holder" includes employee or other post-holder.

(55) A person is not disqualified from being a member of the Parliament merely because—

(a) he is a peer (whether of the United Kingdom, Great Britain, England or Scotland), or

(b) he is a Lord Spiritual.

(56) A citizen of the European Union who is resident in the United Kingdom is not disqualified from being a member of the Parliament merely because of section 3 of the Act of Settlement (disqualification of persons born outside the United Kingdom other than certain Commonwealth citizens and citizens of the Republic of Ireland).

(57) Subsection (58) applies where a person was, or is alleged to have been, disqualified from being a member of the Parliament (either generally or in relation to a particular constituency or region) on any ground other than one falling within subsection (52)(b).

(58) The Parliament may resolve to disregard any disqualification incurred by that person on the ground in question if it considers that—

(a) the ground has been removed, and

(b) it is proper to disregard any disqualification so incurred.

(59) A resolution under this section shall not—

(a) affect any proceedings under Part III of the Representation of the People Act 1983 as applied by an order under section 12 of the Scotland Act 1998 (c.46), or

(b) enable the Parliament to disregard any disqualification which has been established in such proceedings or in proceedings under section 18 of the Scotland Act 1998 (c.46).

Electors [520]

(60) The persons entitled to vote as electors at an election for membership of the Parliament held in any constituency are those who on the day of the poll—

(a) would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the constituency, and

(b) are registered in the register of local government electors at an address within the constituency.

(61) A person is not entitled to vote as elector in any constituency—

(a) more than once at a poll for the return of a constituency member, or

(b) more than once at a poll for the return of regional members, or to vote as elector in more than one constituency at a general election.

115 Presiding Office and administration of the Scottish Parliament

Presiding Officer [521]

(1) The Parliament shall, following a general election, elect from among its members a Presiding Officer and two deputies.

(2) The Parliament must do so—

(a) before it conducts any other proceedings, except the taking by its members of the oath of allegiance (see section 84 of the Scotland Act 1998 (c.46)), and

(b) in any event, within the period of 14 days beginning immediately after the day of the poll at the election.

(3) The Parliament may, at any time, elect from among its members one or more additional deputies.

(4) A person elected Presiding Officer or deputy shall hold office until the conclusion of the next election for Presiding Officer under subsection (1) unless he previously resigns, ceases to be a member of the Parliament otherwise than by virtue of a dissolution or is removed from office by resolution of the Parliament.

(5) But standing orders may make provision for additional deputies to hold office for a shorter time than provided by subsection (2).

(6) If the Presiding Officer or a deputy elected under subsection (1) ceases to hold office before the Parliament is dissolved, the Parliament shall elect another from among its members to fill his place.

(7) The Presiding Officer's functions may be exercised by a deputy if the office of Presiding Officer is vacant or the Presiding Officer is for any reason unable to act.

(8) The Presiding Officer may (subject to standing orders) authorise any deputy to exercise functions on his behalf.

(9) Standing orders may include provision as to the participation (including voting) of the Presiding Officer and deputies in the proceedings of the Parliament.

(10) The validity of any act of the Presiding Officer or a deputy is not affected by any defect in his election.

Clerk of the Parliament [522]

(11) There shall be a Clerk of the Parliament.

(12) The Clerk shall be appointed by the Scottish Parliamentary Corporate Body (established under section 21 of the Scotland Act 1998 (c.46)).

(13) The Clerk's functions may be exercised by any Assistant Clerk if the office of Clerk is vacant or the Clerk is for any reason unable to act.

(14) The Clerk may authorise any Assistant Clerk or other member of the staff of the Parliament to exercise functions on his behalf.

116 Powers of the Scottish Parliament

Acts of the Scottish Parliament [523]

(1) Subject to subsections (8) to (12) below, the Parliament may make laws, to be known as Acts of the Scottish Parliament.

(2) Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent.

(3) A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Scottish Seal signed with Her Majesty's own hand signifying Her Assent are recorded in the Register of the Great Seal.

(4) The date of Royal Assent shall be written on the Act of the Scottish Parliament by the Clerk, and shall form part of the Act.

(5) The validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.

(6) Every Act of the Scottish Parliament shall be judicially noticed.

(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. [524]

Legislative competence [525]

(8) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(9) A provision is outside that competence so far as any of the following paragraphs apply—

(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

(b) it relates to reserved matters,

(c) it is in breach of the restrictions in Schedule 4 to the Scotland Act 1998 (c.46),

(d) it is incompatible with any of the Convention rights or with EU law,

(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.

(10) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (11), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

(11) A provision which—

(a) would otherwise not relate to reserved matters, but

(b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,

is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.

(12) Subsection (8) is subject to subsection (18).

Legislative competence: supplementary [526]

(13) Schedule 5 to the Scotland Act 1998 (c.46) (which defines reserved matters) shall have effect.

(14) Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 of the Scotland Act 1998 (c.46) which She considers necessary or expedient.

(15) Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Constitution as may be specified, as being, or as not being, functions which are exercisable in or as regards Scotland.

(16) An Order in Council under this section may also make such modifications of—

(a) any enactment or prerogative instrument (including any enactment comprised in or made under the Scotland Act 1998 (c.46)), or

(b) any other instrument or document,

as Her Majesty considers necessary or expedient in connection with other provision made by the Order.

(17) Subsection (18) applies where any alteration is made—

(a) to the matters which are reserved matters, or

(b) to Schedule 4,(whether by virtue of the making, revocation or expiry of an Order in Council under this section or otherwise).

(18) Where the effect of the alteration is that a provision of an Act of the Scottish Parliament ceases to be within the legislative competence of the Parliament, the provision does not for that reason cease to have effect (unless an enactment provides otherwise).

Scrutiny of Bills before introduction [527]

(19) A person in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament.

(20) The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision.

(21) The form of any statement, and the manner in which it is to be made, shall be determined under standing orders, and standing orders may provide for any statement to be published.

Submission of Bills for Royal Assent [528]

(22) It is for the Presiding Officer to submit Bills for Royal Assent.

(23) The Presiding Officer shall not submit a Bill for Royal Assent at any time when—

(a) the Advocate General, the Lord Advocate or the Attorney General is entitled to make a reference in relation to the Bill under subsections (26) to (28),

(b) any such reference has been made but has not been decided or otherwise disposed of by the Supreme Court, or

(c) an order may be made in relation to the Bill under section 35 of the Scotland Act 1998 (c.46).

(24) The Presiding Officer shall not submit a Bill in its unamended form for Royal Assent if—

(a) the Supreme Court has decided that the Bill or any provision of it would   not be within the legislative competence of the Parliament, or

(b) a reference made in relation to the Bill under subsections (26) to (28) has been withdrawn following a request for withdrawal of the reference under section 34(2)(b) of the Scotland Act 1998 (c.46).

(25) In this section—

"Advocate General" means the Advocate General for Scotland.

Scrutiny of Bills by the Supreme Court [529]

(26) The Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision.

(27) Subject to subsection (28), he may make a reference in relation to a Bill at any time during—

(a) the period of four weeks beginning with the passing of the Bill, and

(b) any period of four weeks beginning with any subsequent approval of the Bill in accordance with standing orders made by virtue of section 36(5) of the Scotland Act 1998 (c.46).

(28) He shall not make a reference in relation to a Bill if he has notified the Presiding Officer that he does not intend to make a reference in relation to the Bill, unless the Bill has been approved as mentioned in subsection (27)(b) since the notification.

117 The Scottish Executive [530]

(1) There shall be a Scottish Executive, whose members shall be—

(a) the First Minister,

(b) such Ministers as the First Minister may lawfully appoint, and

(c) the Lord Advocate and the Solicitor General for Scotland.

(2) The members of the Scottish Government are referred to collectively as the Scottish Ministers.

(3) A person who holds a Ministerial office may not be appointed a member of the Scottish Government; and if a member of the Scottish Government is appointed to a Ministerial office he shall cease to hold office as a member of the Scottish Government.

(4) In subsection (3), references to a member of the Scottish Government include a junior Scottish Minister and "Ministerial office" has the same meaning as in section 2 of the House of Commons Disqualification Act 1975.

118 The First Minister [531]

(1) The First Minister shall be appointed by Her Majesty from among the members of the Parliament and shall hold office at Her Majesty's pleasure.

(2) The First Minister may at any time tender his resignation to Her Majesty and shall do so if the Parliament resolves that the Scottish Government no longer enjoys the confidence of the Parliament.

(3) The First Minister shall cease to hold office if a person is appointed in his place.

(4) If the office of First Minister is vacant or he is for any reason unable to act, the functions exercisable by him shall be exercisable by a person designated by the Presiding Officer.

(5) A person shall be so designated only if—

(a) he is a member of the Parliament, or

(b) if the Parliament has been dissolved, he is a person who ceased to be a member by virtue of the dissolution.

(6) Functions exercisable by a person by virtue of subsection (5)(a) shall continue to be exercisable by him even if the Parliament is dissolved.

(7) The First Minister shall be the Keeper of the Scottish Seal.

119 Choice of the First Minister [532]

(1) If one of the following events occurs, the Parliament shall within the period allowed nominate one of its members for appointment as First Minister.

(2) The events are—

(a) the holding of a poll at a general election,

(b) the First Minister tendering his resignation to Her Majesty,

(c) the office of First Minister becoming vacant (otherwise than in consequence of his so tendering his resignation),

(d) the First Minister ceasing to be a member of the Parliament otherwise than by virtue of a dissolution.

(3) The period allowed is the period of 28 days which begins with the day on which the event in question occurs; but—

(a) if another of those events occurs within the period allowed, that period shall be extended (subject to paragraph (b)) so that it ends with the period of 28 days beginning with the day on which that other event occurred, and

(b) the period shall end if the Parliament passes a resolution under section 3(1)(a) of the Scotland Act 1998 (c.46) or when Her Majesty appoints a person as First Minister.

(4) The Presiding Officer shall recommend to Her Majesty the appointment of any member of the Parliament who is nominated by the Parliament under this section.

120 Ministers [533]

(1) The First Minister may, with the approval of Her Majesty, appoint Ministers from among the members of the Parliament.

(2) The First Minister shall not seek Her Majesty's approval for any appointment under this section without the agreement of the Parliament.

(3) A Minister appointed under this section—

(a) shall hold office at Her Majesty's pleasure,

(b) may be removed from office by the First Minister,

(c) may at any time resign and shall do so if the Parliament resolves that the Scottish Government no longer enjoys the confidence of the Parliament,

(d) if he resigns, shall cease to hold office immediately, and

(e) shall cease to hold office if he ceases to be a member of the Parliament otherwise than by virtue of a dissolution.

121 The Scottish Law Officers [534]

(1) It is for the First Minister to recommend to Her Majesty the appointment or removal of a person as Lord Advocate or Solicitor General for Scotland; but he shall not do so without the agreement of the Parliament.

(2) The Lord Advocate and the Solicitor General for Scotland may at any time resign and shall do so if the Parliament resolves that the Scottish Government no longer enjoys the confidence of the Parliament.

(3) Where the Lord Advocate resigns in consequence of such a resolution, he shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of Lord Advocate is granted, but only for the purpose of exercising his retained functions.

(4) Subsection (3) is without prejudice to section 287 of the Criminal Procedure (Scotland) Act 1995 (demission of office by Lord Advocate).

(5) Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.

(6) In Schedule 2 to the House of Commons Disqualification Act 1975 (Ministerial offices) and Part III of Schedule 1 to the Ministerial and other Salaries Act 1975 (salaries of the Law Officers), the entries for the Lord Advocate and the Solicitor General for Scotland are omitted.

122 Functions of Scottish Ministers

Exercise of functions [535]

(1) Statutory functions may be conferred on the Scottish Ministers by that name.

(2) Statutory functions of the Scottish Ministers, the First Minister or the Lord Advocate shall be exercisable on behalf of Her Majesty.

(3) Statutory functions of the Scottish Ministers shall be exercisable by any member of the Scottish Government.

(4) Any act or omission of, or in relation to, any member of the Scottish Government shall be treated as an act or omission of, or in relation to, each of them; and any property acquired, or liability incurred, by any member of the Scottish Government shall be treated accordingly.

(5) Subsection (4) does not apply in relation to the exercise of—

(a) functions conferred on the First Minister alone, or

(b) retained functions of the Lord Advocate.

(6) In this section, "retained functions" in relation to the Lord Advocate means—

(a) any functions exercisable by him immediately before he ceases to be a Minister of the Crown, and

(b) other statutory functions conferred on him alone after he ceases to be a Minister of the Crown.

(7) In this section, "statutory functions" means functions conferred by virtue of any enactment.

General transfer of functions [536]

(8) The functions mentioned in subsection (9) shall, so far as they are exercisable within devolved competence, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.

(9) Those functions are—

(a) those of Her Majesty's prerogative and other executive functions which are exercisable on behalf of Her Majesty by a Minister of the Crown,

(b) other functions conferred on a Minister of the Crown by a prerogative instrument, and

(c) functions conferred on a Minister of the Crown by any pre-commencement enactment,

but do not include any retained functions of the Lord Advocate.

(10) In this section, "pre-commencement enactment" means—

(a) an Act passed before or in the same session as the Scotland Act 1998 (c.46) and any other enactment made before the passing of that Act,

(b) an enactment made, before the commencement of this section, under such an Act or such other enactment,

(c) subordinate legislation under section 106 of the Scotland Act 1998 (c.46), to the extent that the legislation states that it is to be treated as a pre-commencement enactment.

Devolved competence [537]

(11) References in this section to the exercise of a function being within or outside devolved competence are to be read in accordance with this section.

(12) It is outside devolved competence—

(a) to make any provision by subordinate legislation which would be outside the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament, or

(b) to confirm or approve any subordinate legislation containing such provision.

(13) In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament.

Functions exercisable with agreement [538]

(14) A statutory provision, or any provision not contained in an enactment, which provides for a Minister of the Crown to exercise a function with the agreement of, or after consultation with, any other Minister of the Crown shall cease to have effect in relation to the exercise of the function by a member of the Scottish Government by virtue of subsections (8) to (10) above.

(15) In subsection (14) "statutory provision" means any provision in a pre-commencement enactment other than paragraph 5 or 15 of Schedule 32 to the Local Government, Planning and Land Act 1980 (designation of enterprise zones).

Shared powers [539]

(16) Despite the transfer by virtue of subsections (8) to (10) above of any function under—

(a) section 17(1) of the Ministry of Transport Act 1919 (power to make advances for certain purposes),

(b) any Order in Council under section 1 of the United Nations Act 1946 (measures to give effect to Security Council decisions),

(c) section 9 of the Industrial Organisation and Development Act 1947 (levies for scientific research, promotion of exports, etc.),

(d) section 5 of the Science and Technology Act 1965 (funding of scientific   research),

(e) section 1 of the Mineral Exploration and Investment Grants Act 1972 (contributions in respect of mineral exploration),

(f) sections 10 to 12 of the Industry Act 1972 (credits and grants for construction of ships and offshore installations),

(g) sections 2, 11(3) and 12(4) of the Employment and Training Act 1973 (power to make arrangements for employment and training etc. and to make certain payments),

(h) sections 7 to 9 and 11 to 13 of the Industrial Development Act 1982 (financial and other assistance for industry), and

(i) sections 39 and 40 of the Road Traffic Act 1988 (road safety information and training),

the function shall be exercisable by a Minister of the Crown as well as by the Scottish Ministers.

(17) Despite the transfer of any other function by virtue of subsections (8) to (10) above, the function shall, if subordinate legislation so provides, be exercisable (or be exercisable so far as the legislation provides) by a Minister of the Crown as well as by the Scottish Ministers.

(18) Subordinate legislation under subsection (17) may not be made so as to come into force at any time after the function in question has become exercisable by the Scottish Ministers.

(19) Any power referred to in subsection (9)(a) to establish, maintain or abolish a body, office or office-holder having functions which include both—

(a) functions which are exercisable in or as regards Scotland and do not relate to reserved matters, and

(b) other functions,

shall, despite that section, be exercisable jointly by the Minister of the Crown and the Scottish Ministers.

(20) In subsection (19), "office-holder" includes employee or other post-holder.

EU law and Convention rights [540]

(21) Despite the transfer to the Scottish Ministers by virtue of subsections (8) to (10) above of functions in relation to observing and implementing obligations under EU law, any function of a Minister of the Crown in relation to any matter shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972.

(22) A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law.

(23) Subsection (22) does not apply to an act of the Lord Advocate—

(a) in prosecuting any offence, or

(b) in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland.

123 The Scottish Consolidated Fund and Other Financial Provisions

(1) There shall be a Scottish Consolidated Fund. [541]

(2) The Secretary of State shall from time to time make payments into the Fund out of money provided by Parliament of such amounts as he may determine. [542]

(3) Sums received by an office-holder in the Scottish Administration shall be paid into the Fund. [543]

(4) Subsection (3) is subject to any provision made by or under an Act of the Scottish Parliament for the disposal of or accounting for such sums. [544]

(5) The Treasury may, after consulting with the Scottish Ministers, by order designate receipts of any description specified in the order which are payable into the Fund (or would be but for any provision made by or under an Act of the Scottish Parliament). [545]

(6) The Scottish Ministers shall make payments to the Secretary of State, at such times and by such methods as the Treasury may from time to time determine, of sums equal to the total amount outstanding in respect of designated receipts. [546]

(7) Amounts required for the payment of sums under subsection (6) shall be charged on the Fund. [547]

(8) The Fund shall be held with the Paymaster General. [548]

(9) The Scottish Ministers may borrow from the Secretary of State any sums required by them for the purpose of—

(a) meeting a temporary excess of sums paid out of the Scottish Consolidated Fund over sums paid into that Fund, or

(b) providing a working balance in the Fund. [549]

(10) Amounts required for the repayment of, or the payment of interest on, sums borrowed under this section shall be charged on the Fund. [550]

(11) Sums borrowed under this section shall be repaid to the Secretary of State at such times and by such methods, and interest on them shall be paid to him at such rates and at such times, as the Treasury may from time to time determine. [551]

(12) A member of the Scottish Government may borrow money only under this section or under any power conferred by any other Act of Parliament. [552]

(13) The Treasury may issue to the Secretary of State out of the National Loans Fund such sums as are required by him for making loans under subsections (9) to (12). [553]

(14) The aggregate at any time outstanding in respect of the principal of sums borrowed under that section shall not exceed £500 million. [554]

(15) The Secretary of State may by order made with the consent of the Treasury substitute for the amount (or substituted amount) specified in subsection (14) such increased amount as may be specified in the order. [555]

(16) Sums received by the Secretary of State under subsection (11) shall be paid into the National Loans Fund. [556]

(17) If a member of the Scottish Government lends money to a body established under any enactment, the rate of interest on the loan shall not be less than the lowest rate determined by the Treasury under section 5 of the National Loans Act 1968 in respect of similar loans made out of the National Loans Fund on the day the loan is made. [557]

(18) A body established under any enactment shall not, in pursuance of a power conferred by virtue of an Act of the Scottish Parliament, borrow money in a currency other than sterling except with the consent of the Scottish Ministers given with the approval of the Treasury. [558]

(19) There shall be an Auditor General for Scotland who shall be an individual appointed by Her Majesty on the nomination of the Parliament. [559]

(20) A recommendation shall not be made to Her Majesty for the removal from office of the Auditor General for Scotland unless the Parliament so resolves and, if the resolution is passed on a division, the number of members voting in favour is not less than two-thirds of the total number of seats for members of the Parliament. [560]

(21) The validity of any act of the Auditor General for Scotland is not affected by any defect in his nomination by the Parliament. [561]

(22) The Auditor General for Scotland shall not, in the exercise of any of his functions, be subject to the direction or control of any member of the Scottish Government or of the Parliament. [562]

(23) Subsection (22) does not apply in relation to any function conferred on him of preparing accounts. [563]

(24) Scottish legislation shall provide—

(a) for proper accounts to be prepared by the Scottish Ministers, by the Lord Advocate and by other persons to whom sums are paid out of the Scottish Consolidated Fund, of their expenditure and receipts,

(b) for the Scottish Ministers to prepare an account of payments into and out of the Fund,

(c) for the Auditor General for Scotland to exercise, or ensure the exercise by other persons of, the functions mentioned in subsection (25),

(d) for access by persons exercising those functions to such documents as they may reasonably require,

(e) for members of the staff of the Scottish Administration designated for the purpose to be answerable to the Parliament in respect of the expenditure and receipts of each part of the Scottish Administration, and

(f) for the publication of parliamentary accounts and of reports on such accounts and for the laying of such accounts and reports before the Parliament. [564]

(25) The functions referred to in subsection (24)(c) are—

(a) issuing credits for the payment of sums out of the Fund,

(b) examining parliamentary accounts (which includes determining whether sums paid out of the Fund have been paid out and applied in accordance with section 65 of the Scotland Act 1998 (c.46)), and certifying and reporting on them,

(c) carrying out examinations into the economy, efficiency and effectiveness with which the Scottish Ministers and the Lord Advocate have used their resources in discharging their functions, and

(d) carrying out examinations into the economy, efficiency and effectiveness with which other persons determined under Scottish legislation to whom sums are paid out of the Fund have used those sums in discharging their functions. [565]

(26) Standing orders shall provide for the consideration by the Parliament of accounts and reports laid before it in pursuance of subsection (24)(f). [566]

(27) Scottish legislation may make further provision for the purpose of ensuring that persons who receive sums derived from the Fund are accountable including, in particular, provision for any person to whom subsection (24)(a) does not apply to be accountable for his expenditure and receipts in respect of functions for which he receives sums derived from the Fund. [567]

(28) Persons (other than the Auditor General for Scotland) charged with the exercise of any function mentioned in subsection (25) or other like function conferred by Scottish legislation shall not, in the exercise of that or any ancillary function, be subject to the direction or control of any member of the Scottish Government or of the Parliament. [568]

(29) Scottish legislation may not require any cross-border public authority to prepare accounts if any other legislation requires—

(a) the authority to prepare accounts of its expenditure and receipts, and

(b) the accounts to be examined, certified and reported on by the Auditor General for Scotland, the Comptroller and Auditor General or a person appointed by either of them. [569]

(30) Subsection (25)(b) does not apply to accounts prepared by the Auditor General for Scotland. [570]

(31) This section does not require Scottish legislation to impose any requirement which is imposed by any other legislation. [571]

(32) In this section—

"parliamentary accounts" means—

(a) any accounts prepared in pursuance of subsection (24)(a) or (b), and

(b) any accounts referred to in subsection (29) which are required to be examined, certified and reported on by the Auditor General for Scotland or any person appointed by him, "Scottish legislation" means provision made by or under an Act of the Scottish Parliament and "other legislation" means provision made by any other enactment.

Chapter 22: WALES

124 The Assembly [572]

(1) There is to be an Assembly for Wales to be known as the National Assembly for Wales or Cynulliad Cenedlaethol Cymru (referred to in this Act as "the Assembly").

(2) The Assembly is to consist of—

(a) one member for each Assembly constituency (referred to in this Constitution as "Assembly constituency members"), and

(b) members for each Assembly electoral region (referred to in this Constitution as "Assembly regional members").

(3) Members of the Assembly (referred to in this Constitution as "Assembly members") are to be returned in accordance with the provision made by and under the Government of Wales Act 2006 (c.32) for—

(a) the holding of general elections of Assembly members (for the return of the entire Assembly), and

(b) the filling of vacancies in Assembly seats.

(4) The validity of any Assembly proceedings is not affected by any vacancy in its membership.

(5) In this Constitution "Assembly proceedings" means any proceedings of—

(a) the Assembly,

(b) committees of the Assembly, or

(c) sub-committees of such committees.

125 Elections for membership of the Welsh Assembly

Assembly constituencies and electoral regions [573]

(1) The Assembly constituencies are the constituencies specified in the Parliamentary Constituencies and Assembly Electoral Regions (Wales) Order 2006 (S.I. 2006/1041) as amended by—

(a) the Parliamentary Constituencies and Assembly Electoral Regions (Wales) (Amendment) Order 2008 (S.I. 2008/1791), and

(b) any Order in Council under the Parliamentary Constituencies Act 1986 giving effect (with or without modifications) to a report falling within section 13(3) or (4) of the Parliamentary Voting System and Constituencies Act 2011.

(2) There are five Assembly electoral regions.

(3) The Assembly electoral regions are as specified in the Parliamentary Constituencies and Assembly Electoral Regions (Wales) Order 2006.

(4) There are four seats for each Assembly electoral region.

General elections

(5) The poll at an ordinary general election is to be held on the first Thursday in May in the fourth calendar year following that in which the previous ordinary general election was held, unless provision is made for the day of the poll by an order under sub-section (9) below. [574]

(6) If the poll is to be held on the first Thursday in May, the Assembly-

(a) is dissolved by virtue of this section at the beginning of the minimum period which ends with that day, and

(b) must meet within the period of seven days beginning immediately after the day of the poll. [575]

(7) In subsection (6) "the minimum period" means the period determined in accordance with an order under section 13 of the Government of Wales Act 2006 (c.32). [576]

(8) In calculating any period of days for the purposes of subsection (6)(b), the following days ar to be disregarded-

(a) Saturday and Sunday,

(b) any day which is a bank holiday in Wales under the Banking and Financial Dealings Act 1971 (c. 80), and

(c) any day appointed for public thanksgiving or mourning. [577]

(9) The Secretary of State must propose a day for the holding of a poll at an extraordinary general election if subsection (10) or (11) applies. [578]

(10) This subsection applies if-

(a) the Assembly resolves that it should be dissolved, and

(b) the resolution of the Assembly is passed on a vote in which the number of Assembly members voting in favour of it is not less than two-thirds of the total number of Assembly seats. [579]

(11) This subsection applies if any period during which the Assembly is required under section 47 of the Government of Wales Act 2006 (c.32) to nominate an Assembly member for appointment as the First Minister ends without such a nomination being made. [580]

(12) If the Secretary of State proposes a day under subsection (9), Her Majesty may by Order in Council-

(a) dissolve the Assembly and require an extraordinary general election to be held,

(b) require the poll at the election to be held on the day proposed, and

(c) require the Assembly to meet within the period of seven days beginning immediately after the day of the poll. [581]

(13) If a poll is held under this section within the period of six months ending with the day on which the poll at the next ordinary general election would be held (disregarding section 12), that ordinary general election is not to be held. [582]

(14) But subsection (13) does not affect the year in which the subsequent ordinary general election is to be held. [583]

(15) In calculating any period of days for the purposes of subsection (12)(c), the following days are to be disregarded-

(a) Saturday and Sunday,

(b) Christmas Eve, Christmas Day and Good Friday,

(c) any day which is a bank holiday in Wales under the Banking and Financial Dealings Act 1971 (c. 80), and

(d) any day appointed for public thanksgiving or mourning. [584]

(16) Each person entitled to vote at a general election in an Assembly constituency has two votes. [585]

(17) One (referred to in this section as a "constituency vote") is a vote which may be given for a candidate to be the Assembly constituency member for the Assembly constituency. [586]

(18) The other (referred to in this section as an "electoral region vote") is a vote which may be given for-

(a) a registered political party which has submitted a list of candidates to be Assembly regional members for the Assembly electoral region in which the Assembly constituency is included, or

(b) an individual who is a candidate to be an Assembly regional member for that Assembly electoral region. [587]

(19) The Assembly constituency member for the Assembly constituency is to be returned under the simple majority system. [588]

(20) The Assembly regional members for the Assembly electoral region are to be returned under the additional member system of proportional representation provided for in this section. [589]

(21) In this section "registered political party" means a party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000 (c. 41). [590]

(22) At a general election a person may not be a candidate to be the Assembly constituency member for more than one Assembly constituency. [591]

(23) Any registered political party may submit a list of candidates for return as Assembly regional members for a particular Assembly electoral region at a general election. [592]

(24) The list must be submitted to the regional returning officer. [593]

(25) The list must not include more than twelve persons (but may include only one). [594]

(26) The list must not include a person-

(a) who is included on any other list submitted for the Assembly electoral region or any list submitted for another Assembly electoral region,

(b) who is an individual candidate to be an Assembly regional member for the Assembly electoral region or another Assembly electoral region, or

(c) who is a candidate to be the Assembly constituency member for an Assembly constituency. [595]

(27) A person may not be an individual candidate to be an Assembly regional member for the Assembly electoral region if that person is-

(a) included on a list submitted by a registered political party for the Assembly electoral region or another Assembly electoral region,

(b) an individual candidate to be an Assembly regional member for another Assembly electoral region, or

(c) a candidate to be the Assembly constituency member for an Assembly constituency. [596]

(28) In this section "regional returning officer", in relation to an Assembly electoral region, means the person designated as the regional returning officer for the Assembly electoral region in accordance with an order under section 13 of the Government of Wales Act 2006 (c.32). [597]

Calculation of electoral region figures [598]

(29) The person who is to be returned as the Assembly constituency member for each Assembly constituency in the Assembly electoral region is to be determined before it is determined who are to be returned as the Assembly regional members for the Assembly electoral region.

(30) For each registered political party by which a list of candidates has been submitted for the Assembly electoral region-

(a) there is to be added together the number of electoral region votes given for the party in the Assembly constituencies included in the Assembly electoral region, and

(b) the number arrived at under paragraph (a) is then to be divided by the aggregate of on and the number of candidates of the party returned as Assembly constituency members for any of those Assembly constituencies.

(31) For each individual candidate to be an Assembly regional member for the Assembly electoral region there is to be added together the number of electoral region votes given for the candidate in the Assembly constituencies included in the Assembly electoral region.

(32) The number arrived at-

(a) in the case of a registered political party, under subsection (30)(b), or

(b) in the case of an individual candidate, under subsection (31),

is referred to in this section as the electoral region figure for that party or individual candidate.

Allocation of seats to electoral region members [599]

(33) The first seat for the Assembly electoral region is to be allocated to the party or individual candidate with the highest electoral region figure.

(34) The second and subsequent seats for the Assembly electoral region are to be allocated to the party or individual candidate with the highest electoral region figure after any recalculation required by subsection (35) has been carried out.

(35) This subsection requires a recalculation under paragraph (b) of subsection (30) in relation to a party-

(a) for the first application of subsection (34), if the application of subsection (33) resulted in the allocation of an Assembly seat to the party, or

(b) for any subsequent application of subsection (34), if the previous application of that subsection did so,

and a recalculation is to be carried out after adding one to the aggregate mentioned in that paragraph.

(36) An individual candidate already returned as an Assembly regional member is to be disregarded.

(37) Seats for the Assembly electoral region which are allocated to a party are to be filled by the persons on the party's list in the order in which they appear on the list.

(38) Once a party's list has been exhausted by the return of persons included on it as Assembly regional members by the previous application of subsection (33) or (34), the party is to be disregarded.

(39) If (on the application of subsection (33) or any application of subsection (34)) the highest electoral region figure is the electoral region figure of two or more parties or individual candidates, the subsection applies to each of them.

(40) However, if subsection (39) would mean that more than the full number of seats for the Assembly electoral region were allocated, subsection (33) or (34) does not apply until-

(a) a recalculation has been carried out under section (30)(b) after adding one to the number of votes given for each party with that electoral region figure, and

(b) one has been added to the number of votes given for each individual candidate with that electoral region figure.

(41) If, after that, the highest electoral region figure is still the electoral region figure of two or more parties or individual candidates, the regional returning officer must decide between them by lots.

Vacancies

(42) The procedures to be followed in the event of a vacancy in a constituency or in an electoral region are those set out in sections 10 and 11 of the Government of Wales Act 2006 (c.32).

Term of office of Assembly members [600]

(43) The term of office of an Assembly member-

(a) begins when the Assembly member is declared to be returned, and

(b) ends with the dissolution of the Assembly.

Resignation of members [601]

(44) An Assembly member may at any time resign by giving notice in writing to the Presiding Officer.

Disqualification from being Assembly member and exceptions

(45) A person is disqualified from being an Assembly member if that person-

(a) is disqualified from being a member of the House of Commons under paragraphs (a) to (e) of section 1(1) of the House of Commons Disqualification Act 1975 (c. 24) (judges, civil servants, members of the armed forces, members of police forces and members of foreign legislatures),

(b) holds any of the offices for the time being designated by Order in Council as office disqualifying persons from being Assembly members,

(c) holds the office of Auditor General,

(d) holds the office of Public Services Ombudsman for Wales, or

(e) is employed as a member of the staff of the Assembly. [602]

(46) Subject to subsections (51) and (52) below, a person is also disqualified from being an Assembly member if that person is disqualified otherwise than under the House of Commons Disqualification Act 1975 (c. 24) (either generally or in relation to a particular constituency) from being a member of the House of Commons or from sitting and voting in it. [603]

(47) For the purposes of subsection (46) the references to the Republic of Ireland in section 1 of the Representation of the People Act 1981 (c. 34) (disqualification of offenders detained in, or unlawfully at large from detention in, the British Islands or the Republic of Ireland) are to be treated as references to any member State (other than the United Kingdom). [604]

(48) A person who holds office as lord-lieutenant, lieutenant or high sheriff of any area in Wales is disqualified from being an Assembly member for any Assembly constituency or Assembly electoral region wholly or partly included in that area. [605]

(49) An Order in Council under paragraph (b) of subsection (45)-

(a) may designate particular offices or offices of any description, and

(b) may designate an office by reference to any characteristic of a person holding it,

and in that paragraph and this subsection "office" includes any post or employment. [606]

(50) No recommendation is to be made to Her Majesty in Council to make an Order in Council under subsection (45)(b) unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, the Assembly. [607]

(51) A person is not disqualified from being an Assembly member merely because that person is-

(a) a peer (whether of the United Kingdom, Great Britain, England or Scotland), or

(b) a Lord Spiritual. [608]

(52) A citizen of the European Union who is resident in the United Kingdom is not disqualified from being an Assembly member merely because of section 3 of the Act of Settlement (1700 c.2) (disqualification of certain persons born outside United Kingdom). [609]

(53) The Assembly may resolve that the disqualification of any person who was, or is alleged to have been, disqualified from being an Assembly member on a ground within subsections (45) or (48) is to be disregarded if it appears to the Assembly-

(a) that the ground has been removed, and

(b) that it is proper so to resolve. [610]

(54) A resolution under subsection (53) does not-

(a) affect any proceedings under Part 3 of the Representation of the People Act 1983 (c. 2) as applied by or incorporated in an order under section 13 of the Government of Wales Act 2006 (c.32), or

(b) enable the Assembly to disregard any disqualification which has been established in such proceedings or in proceedings under section 19 of the Government of Wales Act 2006 (c.32). [611]

126 Presiding Officer and administration

Presiding Officer [612]

(1) The Assembly must, at its first meeting following a general election, elect from among the Assembly members-

(a) a presiding officer (referred to in this section as "the Presiding Officer"), and

(b) a deputy presiding officer (referred to in this section as "the Deputy Presiding Officer").

(2) The person elected under paragraph (a) of subsection (1) is to be known as the Presiding Officer or by such other title as the standing orders may provide; and the person elected under paragraph (b) of that subsection is to be known as the Deputy Presiding Officer or by such other title as the standing orders may provide.

(3) The Presiding Officer holds office until the conclusion of the next election of a Presiding Officer under subsection (1).

(4) The Deputy Presiding Officer holds office until the Assembly is dissolved.

(5) But the Presiding Officer or Deputy Presiding Officer-

(a) may at any time resign,

(b) ceases to hold office on ceasing to be an Assembly member otherwise than by reason of a dissolution, and

(c) may be removed from office by the Assembly.

(6) If the Presiding Officer or the Deputy Presiding Officer ceases to hold office under subsection (5) (or dies), the Assembly must elect a replacement from among the Assembly members.

(7) Subject to subsection (9), the Presiding Officer and the Deputy Presiding Officer must not belong to-

(a) the same political group, or

(b) different political groups both of which are political groups with an executive role.

(8) For the purposes of this section a political group is a political group with an executive role if the First Minister or one or more of the Welsh Ministers appointed under section 48 belong to it.

(9) The Assembly may resolve that subsection (7) is not to apply for so long as the resolution so provides; but if the motion for the resolution is passed on a vote it is of no effect unless at least two-thirds of the Assembly members voting support it.

(10) The Presiding Officer's functions may be exercised by the Deputy Presiding Officer if-

(a) the office of Presiding Officer is vacant, or

(b) the Presiding Officer is for any reason unable to act.

(11) The Presiding Officer may (subject to the standing orders) authorise the Deputy Presiding Officer to exercise functions of the Presiding Officer.

(12) The standing orders may include provision for the Presiding Officer's functions to be exercisable by any person specified in, or determined in accordance with, the standing orders if-

(a) the office of Presiding Officer is vacant or the Presiding Officer is for any reason unable to act, and

(b) the office of Deputy Presiding Officer is vacant or the Deputy Presiding Officer is for any reason unable to act.

(13) The standing orders may include provision as to the participation (including voting) in Assembly proceedings of the Presiding Officer and Deputy Presiding Officer and any person acting by virtue of subsection (12).

(14) The validity of any act of a person as Presiding Officer or Deputy Presiding Officer, or of any person acting by virtue of subsection (12), is not affected by any defect in the person's appointment by the Assembly.

(15) Subsections (10) to (12) are subject to paragraph 11 of Schedule 2 to the Government of Wales Act 2006 (c.32).

Clerk of Assembly [613]

(16) The Assembly Commission must appoint a person to be the Clerk of the Assembly (referred to in this section as "the Clerk").

(17) The person appointed under subsection (16) is to be known as the Clerk of the Assembly or by such other title as the standing orders may provide.

(18) The Clerk's functions may be exercised by any other member of the staff of the Assembly (or person seconded to work at the Assembly) authorised by the Assembly Commission if-

(a) the office of Clerk is vacant, or

(b) the Clerk is for any reason unable to act.

(19) The Clerk may authorise any other member of the staff of the Assembly (or person seconded to work at the Assembly) to exercise functions on the Clerk's behalf.

127 Assembly Measures

Assembly Measures [614]

(1) The Assembly may make laws, to be known as Measures of the National Assembly for Wales or Mesurau Cynulliad Cenedlaethol Cymru (referred to in this section as "Assembly Measures").

(2) A proposed Assembly Measure is enacted by being passed by the Assembly and approved by Her Majesty in Council.

(3) The validity of an Assembly Measure is not affected by any invalidity in the Assembly proceedings leading to its enactment.

(4) Every Assembly Measure is to be judicially noticed.

(5) This does not affect the power of the Parliament of the United Kingdom to make laws for Wales.

Legislative competence [615]

(6) Subject to the provisions of this section, an Assembly Measure may make any provision that could be made by an Act of Parliament.

(7) An Assembly Measure is not law so far as any provision of the Assembly Measure is outside the Assembly's legislative competence.

(8) A provision of an Assembly Measure is within the Assembly's legislative competence only if it falls within subsection (9) or (10).

(9) A provision of an Assembly Measure falls within this subsection if-

(a) it relates to one or more of the matters specified in Part 1 of Schedule 5 to the Government of Wales Act 2006 (c.32) and does not fall within any of the exceptions specified in paragraph A1 of Part 2 of that Schedule (whether or not the exception is under a heading corresponding to the field which includes

the matter), and

(b) it neither applies otherwise than in relation to Wales nor confers, imposes, modifies or removes (or gives power to confer, impose, modify or remove) functions exercisable otherwise than in relation to Wales.

(10) A provision of an Assembly Measure falls within this subsection if-

(a) it provides for the enforcement of a provision (of that or any other Assembly Measure) which falls within subsection (9) or it is otherwise appropriate for making such a provision effective, or

(b) it is otherwise incidental to, or consequential on, such a provision.

(11) But a provision which falls within subsection (9) or (10) is outside the Assembly's legislative competence if-

(a) it breaches any of the restrictions in paragraphs 1 to 6 of Part 2 of Schedule 5 to the Government of Wales Act 2006 (c.32), having regard to any exception in Part 3 of that Schedule from those restrictions,

(b) it extends otherwise than only to England and Wales, or

(c) it is incompatible with the Convention rights or with EU law.

(12) For the purposes of this section the question whether a provision of an Assembly Measure relates to one or more of the matters specified in Part 1 of Schedule 5 to the Government of Wales Act 2006 (c.32) (or falls within any of the

exceptions specified in paragraph A1 of Part 2 of that Schedule) is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

Legislative competence: supplementary [616]

(13) Her Majesty may by Order in Council-

(a) amend Part 1 of Schedule 5 to the Government of Wales Act 2006 (c.32) to add a matter which relates to one or more of the fields listed in that Part, or to vary or remove any matter,

(b) amend that Part to add a new field or to vary or remove any field, or

(c) amend Part 2 or 3 of that Schedule.

(14) An Order in Council under this section does not have effect to amend Part 1 of Schedule 5 to the Government of Wales Act 2006 (c.32) by adding a field if, at the time when the amendment comes into force, no functions in the field are exercisable by the Welsh Ministers, the First Minister or the Counsel General.

(15) An Order in Council under this section may make such modifications of-

(a) any enactment (including any enactment comprised in or made under the Government of Wales Act 2006 (c.32)) or prerogative instrument, or

(b) any other instrument or document,

as Her Majesty considers appropriate in connection with the provision made by the Order in Council.

(16) An Order in Council under this section may make provision having retrospective effect.

(17) No recommendation is to be made to Her Majesty in Council to make an Order in Council under this section unless a draft of the statutory instrument containing the Order in Council-

(a) has been laid before, and approved by a resolution of, the Assembly, and

(b) having been so approved, has been laid before, and approved by a resolution of, each House of Parliament.

(18) As soon as is reasonably practicable after the draft of an Order in Council under this section has been approved by a resolution of the Assembly, the First Minister must ensure that-

(a) notice in writing of the resolution, and

(b) a copy of the draft, is sent to the Secretary of State.

(19) The Secretary of State must, before the end of the period of 60 days beginning immediately after the day on which notice of the Assembly's resolution is received, either-

(a) lay the draft before each House of Parliament, or

(b) give notice in writing to the First Minister of the Secretary of State's refusal to do so and the reasons for that refusal.

(20) As soon as is reasonably practicable after the First Minister receives notice of the Secretary of State's refusal to lay the draft before each House of Parliament and the reasons for that refusal-

(a) the First Minister must lay a copy of the notice before the Assembly, and

(b) the Assembly must ensure that it is published.

(21) In reckoning the period of 60 days mentioned in subsection (19) no account is to be taken of any period during which Parliament is dissolved or prorogued or both Houses are adjourned for more than four days.

(22) The amendment of Schedule 5 to the Government of Wales Act 2006 (c.32) by an Order in Council under this section does not affect-

(a) the validity of an Assembly Measure passed before the amendment comes into force, or

(b) the previous or continuing operation of such an Assembly Measure.

Scrutiny of proposed Orders in Council [617]

(23) The Counsel General or the Attorney General may refer to the Supreme Court for decision the question whether a matter which a proposed Order in Council under subsections (13) to (22), above, proposes to add to Part 1 of Schedule 5 to the Government of Wales Act 2006 (c.32) relates to a field listed in that Part.

Scrutiny of proposed Assembly Measures by Supreme Court [618]

(24) The Counsel General or the Attorney General may refer the question whether a proposed Assembly Measure, or any provision of a proposed Assembly Measure, would be within the Assembly's legislative competence to the Supreme Court for decision.

(25) Subject to subsection (26), the Counsel General or the Attorney General may make a reference in relation to a proposed Assembly Measure at any time during-

(a) the period of four weeks beginning with the passing of the proposed Assembly Measure, and

(b) any period of four weeks beginning with any subsequent approval of the proposed Assembly Measure in accordance with provision included in the standing orders in compliance with section 98(7) of the Government of Wales Act 2006 (c.32).

(26) No reference may be made in relation to a proposed Assembly Measure-

(a) by the Counsel General if the Counsel General has notified the Clerk that no reference is to be made in relation to it by the Counsel General, or

(b) by the Attorney General if the Attorney General has notified the Clerk that no reference is to be made in relation to it by the Attorney General.

(27) But subsection (26) does not apply if the proposed Assembly Measure has been approved as mentioned in subsection (25)(b) since the notification.

Approval of proposed Assembly Measures [619]

(28) It is for the Clerk to submit proposed Assembly Measures for approval by Her Majesty in Council.

(29) The Clerk may not submit a proposed Assembly Measure for approval by Her Majesty in Council at any time when-

(a) the Attorney General or the Counsel General is entitled to make a reference in relation to the proposed Assembly Measure under subsections (24) to (27),

(b) such a reference has been made but has not been decided or otherwise disposed of by the Supreme Court, or

(c) an order may be made in relation to the proposed Assembly Measure under section 101 of the Government of Wales Act 2006 (c.32).

(30) The Clerk may not submit a proposed Assembly Measure in its unamended form for approval by Her Majesty in Council if-

(a) the Supreme Court has decided on a reference made in relation to the proposed Assembly Measure under subsections (24) to (27) that the proposed Assembly Measure or any provision of it would not be within the Assembly's legislative competence, or

(b) a reference made in relation to the proposed Assembly Measure under subsections (24) to (27) has been withdrawn following a request for withdrawal of the reference under section 100(2)(b) of the Government of Wales Act 2006 (c.32).

(31) Once an Assembly Measure has been approved by Her Majesty in Council, the Clerk of the Privy Council must send the Order in Council approving the Assembly Measure to the Clerk.

(32) The date of the approval by Her Majesty in Council of an Assembly Measure is to be written on the Assembly Measure by the Clerk, and forms part of the Assembly Measure.

(33) The Clerk must publish the Order in Council by which an Assembly Measure is approved.

(34) The standing orders must include provision for the notification by the Clerk to the Assembly of the date of the approval of an Assembly Measure by Her Majesty in Council.

(35) The validity of an Assembly Measure is not affected by any failure to comply with provision made by or by virtue of subsection (31), (32) or (34).

128 Acts of the Assembly

Acts of the Assembly [620]

(1) The Assembly may make laws, to be known as Acts of the National Assembly for Wales or Deddfau Cynulliad Cenedlaethol Cymru (referred to in this Constitution as "Acts of the Assembly").

(2) Proposed Acts of the Assembly are to be known as Bills; and a Bill becomes an Act of the Assembly when it has been passed by the Assembly and has received Royal Assent.

(3) The validity of an Act of the Assembly is not affected by any invalidity in the Assembly proceedings leading to its enactment.

(4) Every Act of the Assembly is to be judicially noticed.

(5) This Part does not affect the power of the Parliament of the United Kingdom to make laws for Wales.

Legislative competence [621]

(6) Subject to the provisions of this Part, an Act of the Assembly may make any provision that could be made by an Act of Parliament.

(7) An Act of the Assembly is not law so far as any provision of the Act is outside the Assembly's legislative competence.

(8) A provision of an Act of the Assembly is within the Assembly's legislative competence only if it falls within subsection (9) or (10).

(9) A provision of an Act of the Assembly falls within this subsection if-

(a) it relates to one or more of the subjects listed under any of the headings in Part 1 of Schedule 7 to the Government of Wales Act 2006 (c.32) and does not fall within any of the exceptions specified in that Part of that Schedule (whether or not under that heading or any of those headings), and

(b) it neither applies otherwise than in relation to Wales nor confers, imposes, modifies or removes (or gives power to confer, impose, modify or remove) functions exercisable otherwise than in relation to Wales.

(10) A provision of an Act of the Assembly falls within this subsection if-

(a) it provides for the enforcement of a provision (of that or any other Act of the Assembly) which falls within subsection (9) or a provision of an Assembly Measure or it is otherwise appropriate for making such a provision effective, or

(b) it is otherwise incidental to, or consequential on, such a provision.

(11) But a provision which falls within subsection (9) or (10) is outside the Assembly's legislative competence if-

(a) it breaches any of the restrictions in Part 2 of Schedule 7 to the Government of Wales Act 2006 (c.32), having regard to any exception in Part 3 of that Schedule from those restrictions,

(b) it extends otherwise than only to England and Wales, or

(c) it is incompatible with the Convention rights or with EU law.

(12) For the purposes of this section the question whether a provision of an Act of the Assembly relates to one or more of the subjects listed in Part 1 of Schedule 7 to the Government of Wales Act 2006 (c.32) (or falls within any of the exceptions specified in that Part of that Schedule) is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

Legislative competence: supplementary [622]

(13) Her Majesty may by Order in Council amend Schedule 7 to the Government of Wales Act 2006 (c.32).

(14) An Order in Council under this section may make such modifications of-

(a) any enactment (including any enactment comprised in or made under the Government of Wales Act 2006 (c.32)) or prerogative instrument, or

(b) any other instrument or document,

as Her Majesty considers appropriate in connection with the provision made by the Order in Council.

(15) An Order in Council under this section may make provision having retrospective effect.

(16) No recommendation is to be made to Her Majesty in Council to make an Order in Council under this section unless a draft of the statutory instrument containing the Order in Council-

(a) has been laid before, and approved by a resolution of, each House of Parliament, and

(b) except where the Order in Council is the first of which a draft has been laid under paragraph (a), has been laid before, and approved by a resolution of, the Assembly.

(17) The amendment of Schedule 7 to the Government of Wales Act 2006 (c.32) by an Order in Council under this section does not affect-

(a) the validity of an Act of the Assembly passed before the amendment comes into force, or

(b) the previous or continuing operation of such an Act of the Assembly.

Scrutiny of Bills by Supreme Court [623]

(18) The Counsel General or the Attorney General may refer the question whether a Bill, or any provision of a Bill, would be within the Assembly's legislative competence to the Supreme Court for decision.

(19) Subject to subsection (20), the Counsel General or the Attorney General may make a reference in relation to a Bill at any time during-

(a) the period of four weeks beginning with the passing of the Bill, and

(b) any period of four weeks beginning with any subsequent approval of the Bill in accordance with provision included in the standing orders in compliance with section 111(7) of the Government of Wales Act 2006 (c.32).

(20) No reference may be made in relation to a Bill-

(a) by the Counsel General if the Counsel General has notified the Clerk that no reference is to be made in relation to it by the Counsel General, or

(b) by the Attorney General if the Attorney General has notified the Clerk that no reference is to be made in relation to it by the Attorney General.

(21) But subsection (20) does not apply if the Bill has been approved as mentioned in subsection (19)(b) since the notification.

Royal Assent [624]

(22) It is for the Clerk to submit Bills for Royal Assent.

(23) The Clerk may not submit a Bill for Royal Assent at any time when-

(a) the Attorney General or the Counsel General is entitled to make a reference in relation to the Bill under section 112 of the Government of Wales Act 2006 (c.32),

(b) such a reference has been made but has not been decided or otherwise disposed of by the Supreme Court, or

(c) an order may be made in relation to the Bill under section 114 of the Government of Wales Act 2006 (c.32).

(24) The Clerk may not submit a Bill in its unamended form for Royal Assent if-

(a) the Supreme Court has decided on a reference made in relation to the Bill under section 112 of the Government of Wales Act 2006 (c.32) that the Bill or any provision of it would not be within the Assembly's legislative competence, or

(b) a reference made in relation to the Bill under section 112 of the Government of Wales Act 2006 (c.32) has been withdrawn following a request for withdrawal of the reference under section 113(2)(b) of that Act.

(25) A Bill receives Royal Assent when Letters Patent under the Welsh Seal signed with Her Majesty's own hand signifying Her Assent are notified to the Clerk.

(26) The Keeper of the Welsh Seal must make arrangements to send the

Letters Patent to the National Library of Wales.

(27) The date of Royal Assent is to be written on the Act of the Assembly by the Clerk, and forms part of the Act.

(28) On the copy of the Act of the Assembly on which the Clerk writes the date of Royal Assent the Clerk must write—

(a) the calendar year, and

(b) any prefix and number which has been assigned to that Act of the Assembly.

(29) The information written on the Act of the Assembly in pursuance of subsection (28) forms part of the Act.

(30) The copy of the Act of the Assembly on which the date of Royal Assent and the information in subsection (28) is written is to be known as the official print of the Act.

(31) The Clerk must make a copy of the official print and certify it as a true copy.

(32) The Clerk must send the certified copy to the Queen's Printer and the official print to the National Library of Wales.

(33) The National Library of Wales must ensure that the official prints and Letters Patent it receives are preserved and open to public inspection at all reasonable times.

(34) The standing orders must include provision for notification by the Clerk to the Assembly of the date of Royal Assent to an Act of the Assembly.

(35) The validity of an Act of the Assembly is not affected by any failure to comply with provision made by or by virtue of subsection (25), (27) or (34).

129 Welsh Assembly Government [625]

(1) There is to be a Welsh Assembly Government, or Llywodraeth Cynulliad Cymru, whose members are—

(a) the First Minister or Prif Weinidog (see sections 130 and 131),

(b) the Welsh Ministers, or Gweinidogion Cymru, appointed under section 132,

(c) the Counsel General to the Welsh Assembly Government or Cwnsler Cyffredinol i Lywodraeth Cynulliad Cymru (see section 49 of the Government of Wales Act 2006 (c.32)) (referred to in this Constitution as "the Counsel General"), and

(d) the Deputy Welsh Ministers or Dirprwy Weinidogion Cymru (see section 50 of the Government of Wales Act 2006 (c.32)).

(2) In this Act and in any other enactment or instrument the First Minister and the Welsh Ministers appointed under section 48 are referred to collectively as the Welsh Ministers.

130 The First Minister [626]

(1) The First Minister is to be appointed by Her Majesty after nomination in accordance with section 131, below.

(2) The First Minister holds office at Her Majesty's pleasure.

(3) The First Minister may at any time tender resignation to Her Majesty and ceases to hold office as First Minister when it is accepted.

(4) A person ceases to hold office as the First Minister if another person is appointed to that office.

(5) The functions of the First Minister are exercisable by a person designated by the Presiding Officer if—

(a) the office of the First Minister is vacant,

(b) the First Minister is for any reason unable to act, or

(c) the First Minister has ceased to be an Assembly member.

(6) A person may not be designated to exercise the functions of the First Minister unless the person is—

(a) an Assembly member, or

(b) if the Assembly has been dissolved, a person who ceased to be an Assembly member by reason of the dissolution.

(7) A person may be designated to exercise the functions of the First Minister only on the recommendation of the Welsh Ministers (unless there is no-one holding office as a Welsh Minister appointed under section 132).

(8) If a person is designated to exercise the functions of the First Minister, the designation continues to have effect even if the Assembly is dissolved.

131 Choice of First Minister [627]

(1) If one of the following events occurs, the Assembly must, before the end of the relevant period, nominate an Assembly member for appointment as First Minister.

(2) The events are-

(a) the holding of a poll at a general election,

(b) the Assembly resolving that the Welsh Ministers no longer enjoy the confidence of the Assembly,

(c) the First Minister tendering resignation to Her Majesty,

(d) the First Minister dying or becoming permanently unable to act and to tender resignation, and

(e) the First Minister ceasing to be an Assembly member otherwise than by reason of a dissolution.

(3) The relevant period is the period of 28 days beginning with the day on which the event occurs; but-

(a) if another of those events occurs within that period, the relevant period is (subject to paragraph (b)) extended to end with the period of 28 days beginning with the day on which that other event occurs, and

(b) the relevant period ends if the Assembly passes a resolution under section 5(2)(a) of the Government of Wales Act 2006 (c.32) or when Her Majesty appoints a person as the First Minister.

(4) The Presiding Officer must recommend to Her Majesty the appointment of the person nominated by the Assembly under subsection (1).

132 Welsh Ministers [628]

(1) The First Minister may, with the approval of Her Majesty, appoint Welsh Ministers from among the Assembly members.

(2) A Welsh Minister appointed under this section holds office at Her Majesty's pleasure.

(3) A Welsh Minister appointed under this section may be removed from office by the First Minister.

(4) A Welsh Minister appointed under this section may at any time resign.

(5) A Welsh Minister appointed under this section must resign if the Assembly resolves that the Welsh Ministers no longer enjoy the confidence of the Assembly.

(6) A Welsh Minister appointed under this section who resigns ceases to hold office immediately.

(7) A Welsh Minister appointed under this section ceases to hold office on ceasing to be an Assembly member otherwise than by reason of a dissolution.

133 Functions of Welsh Ministers

(1) The Welsh Ministers, the First Minister and the Counsel General have the functions conferred or imposed on them by or by virtue of the Government of Wales Act 2006 (c.32) or any other enactment or prerogative instrument. [629]

Exercise of functions [630]

(2) Functions may be conferred or imposed on the Welsh Ministers by that name.

(3) Functions of the Welsh Ministers, the First Minister and the Counsel General are exercisable on behalf of Her Majesty.

(4) Functions of the Welsh Ministers are exercisable by the First Minister or any of the Welsh Ministers appointed under section 132.

(5) Any act or omission of, or in relation to, the First Minister or any of the Welsh Ministers appointed under section 132 is to be treated as an act or omission of, or in relation to, each of them.

(6) But subsection (5) does not apply in relation to the exercise of functions conferred or imposed on the First Minister alone.

(7) Where a function conferred or imposed on the Counsel General is (either generally or in particular circumstances) exercisable concurrently by the Welsh Ministers or the First Minister, subsection (5) applies in relation to the exercise of the function (or to its exercise in those circumstances) as if the Counsel General were included among the Welsh Ministers.

Transfer of Ministerial functions [631]

(8) Her Majesty may by Order in Council-

(a) provide for the transfer to the Welsh Ministers, the First Minister or the Counsel General of any function so far as exercisable by a Minister of the Crown in relation to Wales or the Welsh zone,

(b) direct that any function so far as so exercisable is to be exercisable by the Welsh Ministers, the First Minister or the Counsel General concurrently with the Minister of the Crown, or

(c) direct that any function so far as exercisable by a Minister of the Crown in relation to Wales or the Welsh zone is to be exercisable by the Minister of the Crown only with the agreement of, or after consultation with, the Welsh Ministers, the First Minister or the Counsel General.

(9) An Order in Council under this section may not make provision about a function of a Minister of the Crown exercisable in relation to the area of the Welsh zone beyond the seaward limit of the territorial sea unless the function is connected with fishing, fisheries or fish health.

(10) Subsection (9) does not have effect in relation to an Order in Council to the extent that it contains provision made by virtue of paragraph 4 of Schedule 3 of the Government of Wales Act 2006 (c.32) (functions exercisable beyond the

territorial sea).

(11) An Order in Council under this section may, in particular, provide for any function exercisable by the Welsh Ministers, the First Minister or the Counsel General by virtue of an Order in Council under subsection (8)(a) or (b) to be exercisable either generally or in such circumstances as may be specified in the Order in Council, concurrently with any other of the Welsh Ministers, the First Minister or the Counsel General.

(12) An Order in Council under this section may make such modifications of-

(a) any enactment (including any enactment comprised in or made under the Government of Wales Act 2006 (c.32)) or prerogative instrument, or

(b) any other instrument or document,

as Her Majesty considers appropriate in connection with the provision made by the Order in Council.

(13) No recommendation is to be made to Her Majesty in Council to make an Order in Council under this section unless a draft of the statutory instrument containing the Order in Council-

(a) has been laid before, and approved by a resolution of, each House of Parliament, and

(b) has been approved by the Welsh Ministers.

(14) For further provision in connection with the transfer etc. of functions by Orders in Council under this section see Schedule 3 to the Government of Wales Act 2006 (c.32).

134 Welsh Consolidated Fund [632]

(1) There is to be a Welsh Consolidated Fund.

(2) The Welsh Consolidated Fund is to be held with the Paymaster General.

135 Grants [633]

(1) The Secretary of State must from time to time make payments into the Welsh Consolidated Fund out of money provided by Parliament of such amounts as the Secretary of State may determine.

(2) Any Minister of the Crown, and any government department, may make payments to the Welsh Ministers, the First Minister or the Counsel General of such amounts as may be determined by the Minister of the Crown or those responsible in the department.

136 Borrowing by Welsh Ministers [634]

(1) The Welsh Ministers may borrow from the Secretary of State any amounts it appears to them are required by them for the purpose of—

(a) meeting a temporary excess of sums paid out of the Welsh Consolidated Fund over sums paid into that Fund, or

(b) providing a working balance in that Fund.

(2) Amounts borrowed under this section must be repaid to the Secretary of State at such times and by such methods, and interest on such sums must be paid to the Secretary of State at such rates and at such times, as the Treasury may from time to time determine.

(3) Sums required for the repayment of, or the payment of interest on, amounts borrowed under this section are to be charged on the Welsh Consolidated Fund.

137 Lending by Secretary of State [635]

(1) The Treasury may issue to the Secretary of State out of the National Loans Fund such sums as the Secretary of State needs for making loans under section 136.

(2) The aggregate outstanding in respect of the principal of sums borrowed under that section must not exceed £500 million.

(3) The Secretary of State may by order made with the consent of the Treasury substitute for the amount for the time being specified in subsection (2) such greater amount as is specified in the order.

(4) No order is to be made under subsection (3) unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, the House of Commons.

(5) Sums received by the Secretary of State under section 136 must be paid into the National Loans fund.

Chapter 23: NORTHERN IRELAND

138 Status of Northern Ireland [636]

(1) It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1 to the Northern Ireland Act 1998 (c.47).

(2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty's Government in the United Kingdom and the Government of Ireland.

139 The Northern Ireland Assembly

Dates of elections and dissolutions [637]

(1) Subject to subsections (2) to (3), the date of the poll for the election of each Assembly shall be the first Thursday in May in the fourth calendar year following that in which its predecessor was elected; and the predecessor shall be dissolved at the beginning of the minimum period which ends with that date.

(2) The date of the poll for the election of the Assembly next following the Assembly elected at the poll on 26 November 2003 shall be 7 March 2007; and the Assembly elected on 26 November 2003 shall be dissolved on 30 January 2007.

(3) An order under subsection (2) may not specify a date falling on or before the date on which the poll would (apart from that subsection) fall to be held under subsection (1).

(4) An order under subsection (2) may include provision making such modifications of-

(a) any enactment (other than one contained in the Northern Ireland Act 1998 (c.47)), or

(b) any provision of subordinate legislation,

as appear to the Secretary of State to be necessary or expedient for the purposes of, or in consequence of or in connection with, the order.

(5) An order under subsection (2) may, in particular, make provision modifying any duty of the Chief Electoral Officer for Northern Ireland whereby (apart from the order) he must perform any function or discharge any duty on or by reference to a particular date.

(6) An order under subsection (2) may also make such supplementary, incidental or consequential provision as the Secretary of State considers necessary or expedient.

(7) The Assembly elected at the poll on 26th November 2003 shall be dissolved on whichever of the following dates is the earlier-

(a) 3rd May 2007; or

(b) such date as may be specified in an order made by the Secretary of State.

(8) The Secretary of State may at any time by order direct that the date of the poll for the election of the next Assembly shall, instead of being that specified in subsection (1), be a date specified in the order being a date falling not more than two months before or after the date specified in that subsection.

(9) An Assembly elected under this section shall meet within the period of eight days beginning with the day of the poll at which it is elected.

(10) For the purposes of subsection (9), a Saturday, a Sunday, Christmas Day, Good Friday and any day which is a bank holiday in Northern Ireland shall be disregarded, as shall any day on which section 1 of the Northern Ireland Act 2000 is in force.

(11) In this section "minimum period" means a period determined in accordance with an order of the Secretary of State.

Extraordinary elections [638]

(12) If the Assembly passes a resolution that it should be dissolved the Secretary of State shall propose a date for the poll for the election of the next Assembly.

(13) A resolution under subsection (12) shall not be passed without the support of a number of members of the Assembly which equals or exceeds two thirds of the total number of seats in the Assembly.

(14) If-

(a) the period mentioned in section 16A(3) of the Northern Ireland Act 1998 (c.47) ends without the offices of First Minister and deputy First Minister and the Ministerial offices to be held by Northern Ireland Ministers having been filled; or

(b) the period mentioned in section 16B(3) of that Act ends without the offices of First Minister and deputy First Minister having been filled,

the Secretary of State shall propose a date for the poll for the election of the next Assembly.

(15) If the Secretary of State proposes a date under subsection (12) or (14), Her Majesty may by Order in Council—

(a) direct that the date of the poll for the election of the next Assembly shall, instead of being determined in accordance with subsections (1) to (11), be the date proposed; and

(b) provide for the Assembly to be dissolved on a date specified in the Order.

Constituencies and numbers of members [639]

(16) The members of the Assembly shall be returned for the parliamentary constituencies in Northern Ireland.

(17) Each constituency shall return six members.

Elections of members of the Assembly and franchise [640]

(18) Each vote in the poll at an election of members of the Assembly shall be a single transferable vote.

(19) A single transferable vote is a vote—

(a) capable of being given so as to indicate the voter's order of preference for the candidate for election as members for the constituency; and

(b) capable of being transferred to the next choice when the vote is not needed to give a prior choice the necessary quota of votes or when a prior choice is eliminated from the list of candidates because of a deficiency in the number of votes given for him.

(20) The Secretary of State may by order make provision about elections or any matter relating to them.

(21) In particular, an order under subsection (20) may make—

(a) provision as to the persons entitled to vote at an election and the registration of such persons;

(b) provision for securing that no person stands as a candidate for more than one constituency at a general election;

(c) provision for determining the date of the poll at a by-election;

(d) provision about deposits.

(22) An order under subsection (20) may apply (with or without modifications) any provision of, or made under, any enactment.

Vacancies [641]

(23) The Secretary of State may by order make provision for the filling of vacancies occurring in the Assembly's membership.

(24) Such provision may be made by reference to by-elections or substitutes or such other method of filling vacancies as the Secretary of State thinks fit.

(25) If a seat becomes vacant, the Presiding Officer shall as soon as reasonably practicable inform the Chief Electoral Officer for Northern Ireland.

(26) The validity of any proceedings of the Assembly is not affected by any vacancy in its membership.

(27) An order under subsection (23) may apply (with or without modifications) any provision of, or made under, any enactment.

Disqualification [642]

(28) The Northern Ireland Assembly Disqualification Act 1975 shall have effect as if any reference to the Assembly established under section 1 of the Northern Ireland Assembly Act 1973 were a reference to the Assembly.

(29) No recommendation shall be made to Her Majesty to make an Order in Council under section 3(1) of the Northern Ireland Assembly Disqualification Act 1975 (power to amend Schedule 1) without the consent of the Secretary of State.

(30) A person who is Her Majesty's Lord-Lieutenant or Lieutenant for a county or county borough in Northern Ireland is disqualified for membership of the Assembly for a constituency comprising the whole or part of the county or county borough.

(31) A person is disqualified for membership of the Assembly if he is disqualified for membership of the House of Commons otherwise than under the House of Commons Disqualification Act 1975.

(32) A person is not disqualified for membership of the Assembly by virtue of subsection (31) by reason only that—

(a) he is a peer; or

(b) he is a Lord Spiritual.

(33) A person is not disqualified for membership of the Assembly by virtue of subsection (31) by reason only that he is disqualified under section 3 of the Act of Settlement (certain persons born out of the Kingdom) if he is a citizen of the European Union.

140 Presiding Officer [643]

(1) Each Assembly shall as its first business elect from among its members a Presiding Officer and deputies.

(2) A person elected Presiding Officer or deputy shall hold office until the conclusion of the next election for Presiding Officer under subsection (1) unless—

(a) he previously resigns;

(b) he ceases to be a member of the Assembly otherwise than by virtue of a dissolution; or

(c) the Assembly elects from among its members a person to hold office as Presiding Officer or deputy in his place.

(3) If the Presiding Officer or a deputy ceases to hold office (otherwise than under subsection (2)(c) before the Assembly is dissolved, the Assembly shall elect another from among its members to fill his place.

(4) The Presiding Officer's functions may be exercised by a deputy if the office of Presiding Officer is vacant or the Presiding Officer is for any reason unable to act.

(5) The Presiding Officer may (subject to standing orders) authorise a deputy to exercise functions on his behalf.

(6) Standing orders may include provision as to the participation (including voting) of the Presiding Officer and deputies in the proceedings of the Assembly.

(7) A person shall not be elected under subsections (1) to (3) without cross-community support.

141 Acts of the Northern Ireland Assembly [644]

(1) Subject to sections 142 to 144, the Assembly may make laws, to be known as Acts.

(2) A Bill shall become an Act when it has been passed by the Assembly and has received Royal Assent.

(3) A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Great Seal of Northern Ireland signed with Her Majesty's own hand signifying Her Assent are notified to the Presiding Officer.

(4) The date of Royal Assent shall be written on the Act by the Presiding Officer, and shall form part of the Act.

(5) The validity of any proceedings leading to the enactment of an Act of the Assembly shall not be called into question in any legal proceedings.

(6) This section does not affect the power of the Parliament of the United Kingdom to make laws for Northern Ireland, but an Act of the Assembly may modify any provision made by or under an Act of Parliament in so far as it is part of the law of Northern Ireland.

142 Legislative competence [645]

(1) A provision of an Act is not law if it is outside the legislative competence of the Assembly.

(2) A provision is outside that competence if any of the following paragraphs apply—

(a) it would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland;

(b) it deals with an excepted matter and is not ancillary to other provisions (whether in the Act or previously enacted) dealing with reserved or transferred matters;

(c) it is incompatible with any of the Convention rights;

(d) it is incompatible with EU law;

(e) it discriminates against any person or class of person on the ground of religious belief or political opinion;

(f) it modifies an enactment in breach of section 143.

(3) For the purposes of this Constitution, a provision is ancillary to other provisions if it is a provision—

(a) which provides for the enforcement of those other provisions or is otherwise necessary or expedient for making those other provisions effective; or

(b) which is otherwise incidental to, or consequential on, those provisions;

and references in the Northern Ireland Act 1998 (c.47) to provisions previously enacted are references to provisions contained in, or in any instrument made under, other Northern Ireland legislation or an Act of Parliament.

(4) Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of the Northern Ireland Act 1998 (c.47) as may be specified, as being, or as not being, functions which are exercisable in or as regards Northern Ireland.

(5) No recommendation shall be made to Her Majesty to make an Order in Council under subsection (4) unless a draft of the Order has been laid before and approved by resolution of each House of Parliament.

143 Entrenched enactments [646]

(1) Subject to subsection (2), the following enactments shall not be modified by an Act of the Assembly or subordinate legislation made, confirmed or approved by a Minister or Northern Ireland department—

(a) the European Communities Act 1972;

(b) the Human Rights Act 1998;

(c) section 43(1) to (6) and (8), section 67, sections 84 to 86B, section 95(3) and (4) and section 98; and

(d) section 1 and section 84 of the Justice (Northern Ireland) Act 2002.

(2) Subsection (1) does not prevent an Act of the Assembly or subordinate legislation modifying section 3(3) or (4) or 11(1) of the European Communities Act 1972.

144 Consent of Secretary of State required in certain cases [647]

(1) The consent of the Secretary of State shall be required in relation to a Bill which contains—

(a) a provision which deals with an excepted matter and is ancillary to other provisions (whether in the Bill or previously enacted) dealing with reserved or transferred matters; or

(b) a provision which deals with a reserved matter.

145 Appointment of First Minister, deputy First Minister and Northern Ireland Ministers following Assembly election [648]

(1) This section applies where an Assembly is elected under section 31 or 32 of the Northern Ireland Act 1998 (c.47).

(2) All Northern Ireland Ministers shall cease to hold office.

(3) Within a period of seven days beginning with the first meeting of the Assembly-

(a) the offices of First Minister and deputy First Minister shall be filled by applying subsections (4) to (7); and

(b) the Ministerial offices to be held by Northern Ireland Ministers shall be filled by applying section 18(2) to (6) of the Northern Ireland Act 1998 (c.47).

(4) The nominating officer of the largest political party of the largest political designation shall nominate a member of the Assembly to be the First Minister.

(5) The nominating officer of the largest political party of the second largest political designation shall nominate a member of the Assembly to be the deputy First Minister.

(6) If the persons nominated do not take up office within a period specified in standing orders, further nominations shall be made under subsections (4) and (5).

(7) Subsections (4) to (6) shall be applied as many times as may be necessary to secure that the offices of First Minister and deputy First Minister are filled.

(8) But no person may take up office as First Minister, deputy First Minister or Northern Ireland Minister by virtue of this section after the end of the period mentioned in subsection (3).

(9) The persons nominated under subsections (4) and (5) shall not take up office until each of them has affirmed the terms of the pledge of office.

(10) Subject to the provisions of this Part, the First Minister and the deputy First Minister shall hold office until immediately before those offices are next filled by virtue of this section.

(11) The holder of the office of First Minister or deputy First Minister may by notice in writing to the Presiding Officer designate a Northern Ireland Minister to exercise the functions of that office-

(a) during any absence or incapacity of the holder; or

(b) during any vacancy in that office arising otherwise than under section 146(2),

but a person shall not have power to act by virtue of paragraph (a) for a continuous period exceeding six weeks.

146 Vacancies in the office of First Minister or deputy First Minister [649]

(1) The First Minister or the deputy First Minister-

(a) may at any time resign by notice in writing to the Presiding Officer; and

(b) shall cease to hold office if he ceases to be a member of the Assembly otherwise than by virtue of a dissolution.

(2) If either the First Minister or the deputy First Minister ceases to hold office at any time, whether by resignation or otherwise, the other-

(a) shall also cease to hold office at that time; but

(b) may continue to exercise the functions of his office until immediately before those offices are filled in accordance with this section.

(3) Where the offices of the First Minister and the deputy First Minister become vacant at any time, they shall be filled by applying subsections (4) to (7) within a period of seven days beginning with that time.

(4) The nominating officer of the largest political party of the largest political designation shall nominate a member of the Assembly to be the First Minister.

(5) The nominating officer of the largest political party of the second largest political designation shall nominate a member of the Assembly to be the deputy First Minister.

(6) If the persons nominated do not take up office within a period specified in standing orders, further nominations shall be made under subsections (4) and (5).

(7) Subsections (4) to (6) shall be applied as many times as may be necessary to secure that the offices of First Minister and deputy First Minister are filled.

(8) But no person may take up office as First Minister or deputy First Minister under this section after the end of the period mentioned in subsection (3).

(9) The persons nominated under subsections (4) and (5) shall not take up office until each of them has affirmed the terms of the pledge of office.

147 Ministerial Offices [650]

(1) The First Minister and the deputy First Minister acting jointly may at any time, and shall where subsection (2) applies, determine—

(a) the number of Ministerial offices to be held by Northern Ireland Ministers; and

(b) the functions to be exercisable by the holder of each such office.

(2) This subsection applies where provision is made by an Act of the Assembly for establishing a new Northern Ireland department or dissolving an existing one.

(3) In making a determination under subsection (1), the First Minister and the deputy First Minister shall ensure that the functions exercisable by those in charge of the different Northern Ireland departments existing at the date of the determination are exercisable by the holders of different Ministerial offices.

(4) The number of Ministerial offices shall not exceed 10 or such greater number as the Secretary of State may by order provide.

(5) A determination under subsection (1) shall not have effect unless it is approved by a resolution of the Assembly passed with cross-community support.

148 Functions of Northern Ireland Ministers

Statutory functions [651]

(1) An Act of the Assembly or other enactment may confer functions on a Minister (but not a junior Minister) or a Northern Ireland department by name.

(2) Functions conferred on a Northern Ireland department by an enactment passed or made before the appointed day shall, except as provided by an Act of the Assembly or other subsequent enactment, continue to be exercisable by that department.

Prerogative and executive powers [652]

(3) The executive power in Northern Ireland shall continue to be vested in Her Majesty.

(4) As respects transferred matters, the prerogative and other executive powers of Her Majesty in relation to Northern Ireland shall, subject to subsections (5) and (6), be exercisable on Her Majesty's behalf by any Minister or Northern Ireland department.

(5) So far as the Royal prerogative of mercy is exercisable on Her Majesty's behalf under subsection (4), it is exercisable only by the Minister in charge of the Department of Justice.

(6) As respects the Northern Ireland Civil Service and the Commissioner for Public Appointments for Northern Ireland, the prerogative and other executive powers of Her Majesty in relation to Northern Ireland shall be exercisable on Her Majesty's behalf by the First Minister and the deputy First Minister acting jointly.

(7) The First Minister and deputy First Minister acting jointly may by prerogative order under subsection (6) direct that such of the powers mentioned in that subsection as are specified in the order shall be exercisable on Her Majesty's behalf by a Northern Ireland Minister or Northern Ireland department so specified.

149 Consolidated Fund of Northern Ireland [653]

(1) The Consolidated Fund of Northern Ireland shall continue to exist.

(2) Sums forming part of the Fund—

(a) shall be appropriated to the public service of Northern Ireland by Act of the Assembly; and

(b) shall not be applied for any purpose for which they are not appropriated.

(3) Subsection (2) is subject to section 59 of the Northern Ireland Act 1998 (c.47) and to any provision which charges sums on the Fund and is made—

(a) by or under an Act of Parliament; or

(b) by an Act of the Assembly or other Northern Ireland legislation.

150 Payments into the Fund [654]

(1) The Secretary of State shall from time to time make payments into the Consolidated Fund of Northern Ireland out of money provided by Parliament of such amounts as he may determine.

Chapter 24: LONDON

151 The Authority [655]

(1) There shall be an authority for Greater London, to be known as the Greater London Authority.

(2) The Authority shall be a body corporate.

(3) The Authority shall have the functions which are transferred to, or conferred or imposed on, the Authority by or under the Greater London Authority Act 1999 (c.29) or any other Act.

152 Membership of the Authority and the Assembly [656]

(1) The Authority shall consist of—

(a) the Mayor of London; and

(b) an Assembly for London, to be known as the London Assembly.

(2) The Assembly shall consist of twenty five members, of whom—

(a) fourteen shall be members for Assembly constituencies ("constituency members"); and

(b) eleven shall be members for the whole of Greater London ("London members").

(3) There shall be one constituency member for each Assembly constituency.

(4) The Assembly constituencies shall be the areas, and shall be known by the names, specified in an order made by statutory instrument by the Local Government Boundary Commission for England.

(5) Schedule 1 to the Greater London Authority Act 1999 (c.29) (which makes further provision about Assembly constituencies and orders under subsection (4) above) shall have effect.

(6) The Mayor and the Assembly members shall be returned in accordance with the provision made in or by virtue of the Greater London Authority Act 1999 (c.29) for—

(a) the holding of ordinary elections of the Mayor, the constituency members and the London members; and

(b) the filling of vacancies in the office of Mayor or among the constituency members or the London members.

(7) An ordinary election involves the holding of—

(a) an election for the return of the Mayor;

(b) an election for the return of the London members; and

(c) elections for the return of the constituency members.

(8) The term of office of the Mayor and Assembly members returned at an ordinary election shall—

(a) begin on the second day after the day on which the last of the successful candidates at the ordinary election is declared to be returned; and

(b) end on the second day after the day on which the last of the successful candidates at the next ordinary election is declared to be returned;

but this subsection is subject to the other provisions of the Greater London Authority Act 1999 (c.29) and, in particular, to any provision made by order by virtue of subsection (4) of section 3 of the the Greater London Authority Act 1999 (c.29).

(9) If at any ordinary election the poll at the election of an Assembly member for an Assembly constituency is countermanded or abandoned for any reason, the day on which the last of the successful candidates at the ordinary election is declared to be returned shall be determined for the purposes of subsection (8) above without regard to the return of the Assembly member for that Assembly constituency.

(10) The validity of proceedings of the Assembly is not affected by any vacancy in its membership.

(11) The validity of anything done by the Authority is not affected by any vacancy in the office of Mayor or any vacancy in the membership of the Assembly.

153 The General Power of the Authority [657]

(1) The Authority shall have power to do anything which it considers will further any one or more of its principal purposes.

(2) Any reference in this Constitution to the principal purposes of the Authority is a reference to the purposes of—

(a) promoting economic development and wealth creation in Greater London;

(b) promoting social development in Greater London; and

(c) promoting the improvement of the environment in Greater London.

(3) In determining whether or how to exercise the power conferred by subsection (1) above to further any one or more of its principal purposes, the Authority shall have regard to the desirability of so exercising that power as to—

(a) further the remaining principal purpose or purposes, so far as reasonably practicable to do so; and

(b) secure, over a period of time, a reasonable balance between furthering each of its principal purposes.

(4) In determining whether or how to exercise the power conferred by subsection (1) above, the Authority shall have regard to the effect which the proposed exercise of the power would have on each of the following—

(a) the health of persons in Greater London;

(b) health inequalities between persons living in Greater London;

(c) the achievement of sustainable development in the United Kingdom; and

(d) climate change, and the consequences of climate change.

(5) Where the Authority exercises the power conferred by subsection (1) above, it shall do so in the way which it considers best calculated—

(a) to promote improvements in the health of persons in Greater London;

(b) to promote the reduction of health inequalities between persons living in Greater London;

(c) to contribute towards the achievement of sustainable development in the United Kingdom; and

(d) to contribute towards the mitigation of, or adaptation to, climate change, in the United Kingdom,

except to the extent that the Authority considers that any action that would need to be taken by virtue of paragraph (a), (b), (c) or (d) above is not reasonably practicable in all the circumstances of the case.

(6) In subsection (5)(a) above, the reference to promoting improvements in health includes a reference to mitigating any detriment to health which would otherwise be occasioned by the exercise of the power.

(7) In subsection (5)(b) above, the reference to promoting the reduction of health inequalities includes a reference to mitigating any increase in health inequalities which would otherwise be occasioned by the exercise of the power.

(8) The Secretary of State may issue guidance to the Authority concerning the exercise by the Authority of the power conferred by subsection (1) above.

(9) In deciding whether or how to exercise that power, the Authority shall have regard to any guidance issued under subsection (8) above.

(10) Any guidance issued under subsection (8) above shall be published by the Secretary of State in such manner as he considers appropriate.

(11) The functions conferred or imposed on the Authority under or by virtue of this section shall be functions of the Authority which are exercisable by the Mayor acting on behalf of the Authority.

154 Limits of the general power [658]

(1) The Authority shall not by virtue of section 153(1) above incur expenditure in doing anything which may be done by—

(a) Transport for London;

(b) the Mayor's Office for Policing and Crime; or

(c) the London Fire and Emergency Planning Authority.

(2) In determining whether to exercise the power conferred by section 153(1) above, the Authority must seek to secure that it does not incur expenditure in doing anything which is being done by a Mayoral development corporation.

(3) The Authority shall not by virtue of section 153(1) above incur expenditure in providing—

(a) any education services,

(b) any social services, or

(c) any health services,

in any case where the provision in question may be made by a London borough council, the Common Council or any other public body.

(4) The reference in subsection (3) above to providing any education services does not include sponsoring Academies or facilitating their sponsorship.

(5) Any reference in subsection (3) above to the provision of social services is a reference to the exercise of any social services function within the meaning of the Local Authority Social Services Act 1970.

(6) Any reference in subsection (3) above to the provision of health services does not include a reference to the provision of services or facilities for promoting improvements in, or protecting, public health.

(7) Nothing in subsections (1) to (6) above shall be taken to prevent the Authority incurring expenditure in co-operating with, or facilitating or co-ordinating the activities of, the bodies mentioned in those subsections.

(8) The Secretary of State may by order amending this section make further provision for preventing the Authority from doing by virtue of section 153(1) above anything—

(a) which may be done by a London borough council, the Common Council or a public body, and

(b) which is specified, or is of a description specified, in the order.

(8) The Secretary of State may by order impose limits on the expenditure which may be incurred by the Authority by virtue of section 153(1) above.

(9) The Secretary of State may by order amending this section make provision removing or restricting any prohibitions or limitations imposed by this section on what may be done by the Authority by virtue of section 153(1) above.

155 Authority functions to be exercisable by Mayor, Assembly or both [659]

(1) Any function transferred to, or conferred or imposed on, the Authority by or under the Greater London Authority Act 1999 (c.29) or any other Act (whenever passed) shall, in accordance with the provisions of that Act, be exercisable—

(a) only by the Mayor acting on behalf of the Authority;

(b) only by the Assembly so acting; or

(c) only by the Mayor and Assembly jointly so acting.

(2) Any function—

(a) which is transferred to, or conferred or imposed on, the Authority by or under the Greater London Authority Act 1999 (c.29) or any other Act (whenever passed), and

(b) which (apart from this subsection) is not made exercisable on behalf of the Authority by the Mayor, by the Assembly, or by the Mayor and the Assembly acting jointly,

shall be exercisable only by the Mayor acting on behalf of the Authority.

(3) Any function transferred to, or conferred or imposed on, the Mayor by or under the Greater London Authority Act 1999 (c.29) or any other Act (whenever passed) shall be taken to be a function of the Authority exercisable only by the Mayor acting on behalf of the Authority.

(4) Any function transferred to, or conferred or imposed on, the Assembly by or under the Greater London Authority Act 1999 (c.29) or any other Act (whenever passed) shall be taken to be a function of the Authority exercisable only by the Assembly acting on behalf of the Authority.

(5) Any function transferred to, or conferred or imposed on, the Mayor and the Assembly by or under the Greater London Authority Act 1999 (c.29) or any other Act (whenever passed) shall be taken to be a function of the Authority exercisable only by the Mayor and Assembly acting jointly on behalf of the Authority.

156 General functions and procedure

(1) The functions, powers and procedures of the Authority are those set out in sections 30 to 80 of the Greater London Authority Act 1999 (c.29).

157 General transport duty [660]

(1) The Mayor shall develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities and services to, from and within Greater London.

(2) The powers of the Authority under Part IV of the Greater London Authority Act 1999 (c.29) shall be exercised for the purpose of securing the provision of the transport facilities and services mentioned in subsection (1) above.

(3) The transport facilities and services mentioned in subsection (1) above include facilities and services for pedestrians and are—

(a) those required to meet the needs of persons living or working in, or visiting, Greater London, and

(b) those required for the transportation of freight.

Chapter 25: LOCAL GOVERNMENT

158 Local Government areas in England [661]

(1) For the administration of local government on and after 1st April 1974 England (exclusive of Greater London and the Isles of Scilly) shall be divided into local government areas to be known as counties and in those counties there shall be local government areas to be known as districts.

159 Constitution of Principal Councils in England. [662]

(1) For every non-metropolitan county there shall be a council consisting of a chairman and councillors and the council shall have all such functions as are vested in them by the Local Government Act 1972 (c.70) or otherwise.

(2) For every district there shall be a council consisting of a chairman and councillors and the council shall have all such functions as are vested in them by the Local Government Act 1972 (c.70) or otherwise.

(3) Where a council mentioned in subsection (1) or (2) above are operating executive arrangements which involve a mayor and cabinet executive or a mayor and council manager executive, the council shall consist of an elected mayor, a chairman and councillors.

(4) In such a case, a reference in the Local Government Act 1972 (c.70) to a member of a council is a reference to—

(a) the elected mayor of the council,

(b) the chairman of the council, or

(c) a councillor of the council.

(5) Each council mentioned in subsection (1) or (2) above shall be a body corporate by the name "The County Council" or "The District Council", as the case may be, with the addition of the name of the particular county or district.

(6) The ordinary elections of county councillors shall take place in 1973 and every fourth year thereafter, their term of office shall be four years and they shall retire together in every such fourth year on the fourth day after the ordinary day of election of county councillors, and in and after 1977 the newly elected councillors shall come into office on the day on which their predecessors retire.[663]

160 Constitution and membership of London borough councils [664]

(1) Section 159 above shall not apply to London borough councils but the provisions of Schedule 2 to the Local Government Act 1972 (c.70) shall have effect in relation to them instead.

161 Parishes,[665] and constitution and powers of Parish Council [666]

(1) For every parish there shall be a parish meeting for the purpose of discussing parish affairs and exercising any functions conferred on such meetings by any enactment and, subject to the provisions of this Act or any instrument made thereunder, for every parish or group of parishes having a parish council before 1st April 1974 there shall continue to be a parish council.

(2) A parish council shall consist of the chairman and parish councillors and shall have all such functions as are vested in the council by the Local Government Act 1972 (c.70) or otherwise.

(3) The parish council shall be a body corporate by the name "The Parish Council" with the addition of the name of the particular parish.

(4) If the parish has the style of community, the council shall be known by the name "The Community Council" with the addition of the name of the community.

(5) If the parish has the style of neighbourhood, the council shall be known by the name "The Neighbourhood Council" with the addition of the name of the neighbourhood.

(6) If the parish has the style of village, the council shall be known by the name "The Village Council" with the addition of the name of the village.

(7) If parishes are grouped under a common parish council—

(a) subsection (3), (4), (5) or (6) (as appropriate) applies to that council as the subsection would apply in the case of the council of an individual parish; but

(b) the names of all of the parishes, communities, neighbourhoods or villages in the group are to be included in the name of the common council.

(8) Notwithstanding anything in any rule of law, a parish council need not have a common seal, but where a parish council have no seal any act of theirs which is required to be signified by an instrument under seal may be signified by an instrument signed and sealed by two members of the council.

162 Local Authority's general power of competence[667]

(1) A local authority has power to do anything that individuals generally may do.

(2) Subsection (1) applies to things that an individual may do even though they are in nature, extent or otherwise—

(a) unlike anything the authority may do apart from subsection (1), or

(b) unlike anything that other public bodies may do.

(3) In this section "individual" means an individual with full capacity.

(4) Where subsection (1) confers power on the authority to do something, it confers power (subject to sections 2 to 4) to do it in any way whatever, including—

(a) power to do it anywhere in the United Kingdom or elsewhere,

(b) power to do it for a commercial purpose or otherwise for a charge, or without charge, and

(c) power to do it for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area.

(5)  The generality of the power conferred by subsection (1) ("the general power") is not limited by the existence of any other power of the authority which (to any extent) overlaps the general power.

163 Boundaries of the general power

(1) If exercise of a pre-commencement power of a local authority is subject to restrictions, those restrictions apply also to exercise of the general power so far as it is overlapped by the pre-commencement power.

(2) The general power does not enable a local authority to do—

(a) anything which the authority is unable to do by virtue of a pre-commencement limitation, or

(b) anything which the authority is unable to do by virtue of a post-commencement limitation which is expressed to apply— (i) to the general power, (ii) to all of the authority's powers, or (iii) to all of the authority's powers but with exceptions that do not include the general power.

(3) The general power does not confer power to—

(a) make or alter arrangements of a kind which may be made under Part 6 of the Local Government Act 1972 (arrangements for discharge of authority's functions by committees, joint committees, officers etc);

(b) make or alter arrangements of a kind which are made, or may be made, by or under Part 1A of the Local Government Act 2000 (arrangements for local authority governance in England);

(c) make or alter any contracting-out arrangements, or other arrangements within neither of paragraphs (a) and (b), that authorise a person to exercise a function of a local authority.

(4) In this section—

    "post-commencement limitation" means a prohibition, restriction or other limitation expressly imposed by a statutory provision that— ?(a)?is contained in an Act passed after the end of the Session in which this Act is passed, or ??(b)?is contained in an instrument made under an Act and comes into force on or after the commencement of section 1; ???

    "pre-commencement limitation" means a prohibition, restriction or other limitation expressly imposed by a statutory provision that— ?(a)?is contained in this Act, or in any other Act passed no later than the end of the Session in which this Act is passed, or ??(b)?is contained in an instrument made under an Act and comes into force before the commencement of section 1; ???

    "pre-commencement power" means power conferred by a statutory provision that— ?(a)?is contained in this Act, or in any other Act passed no later than the end of the Session in which this Act is passed, or ??(b)?is contained in an instrument made under an Act and comes into force before the commencement of section 1. ???

164 Limits on charging in exercise of general power

(1) Subsection (2) applies where—

(a) a local authority provides a service to a person otherwise than for a commercial purpose, and

(b) its providing the service to the person is done, or could be done, in exercise of the general power.

(2) The general power confers power to charge the person for providing the service to the person only if—

(a) the service is not one that a statutory provision requires the authority to provide to the person,

(b) the person has agreed to its being provided, and

(c) ignoring this section and section 93 of the Local Government Act 2003, the authority does not have power to charge for providing the service.

(3) The general power is subject to a duty to secure that, taking one financial year with another, the income from charges allowed by subsection (2) does not exceed the costs of provision.

(4) The duty under subsection (3) applies separately in relation to each kind of service.

165 Limits on doing things for commercial purpose in exercise of general power

(1) The general power confers power on a local authority to do things for a commercial purpose only if they are things which the authority may, in exercise of the general power, do otherwise than for a commercial purpose.

(2) Where, in exercise of the general power, a local authority does things for a commercial purpose, the authority must do them through a company.

(3) A local authority may not, in exercise of the general power, do things for a commercial purpose in relation to a person if a statutory provision requires the authority to do those things in relation to the person.

(4) In this section "company" means—(a) a company within the meaning given by section 1(1) of the Companies Act 2006, or (b) a society registered or deemed to be registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969.

166 Local Government in Scotland, Wales and Northern Ireland

(1)  Whereas Acts of the United Kingdom Parliament have earlier made provision for the structure, functions and working of local authorities (many of which continue in force), now under the Scotland Act 1998 (as amended) with respect to Scotland, the Government of Wales Act 2006 (as amended) with respect to Wales, and the Northern Ireland Act 1998 (as amended) with respect to Northern Ireland, responsibilities and legislative powers for local government have been devolved upon the Scottish Parliament, National Assembly of Wales and Northern Ireland Assembly.[668]

(2)  Until devolution local government in Wales was subject to the same legislation as that in England. In contrast to Wales, Scottish local government legislation is mostly separate from that for England and Wales, although there have often been strong similarities (for example the 1973 Act in Scotland covered broadly the same matters as the 1972 Act in England and Wales). Northern Irish legislation has generally been entirely separate from legislation for England, Wales and Scotland. Legislation before Irish independence covered the whole of Ireland, rather than just the North.

(3)  The following are the main statutory provisions regulating the constitutional structure of local government -

(i) Wales

Municipal Corporations Act 1835 (standardisation of franchise and some functions of municipal corporations)

Local Government Act 1888 (creation of county and county borough councils)

Local Government Act 1894 (creation of district and parish councils)

Local Government Act 1929 (new criteria for the creation of new county boroughs)

Local Government Act 1972 (creation of eight county councils, 37 district councils, and community councils in Wales)

Local Government (Wales) Act 1994 (creation of 22 unitary authorities to replace county and district councils)

Local Government Measure 2011 [passed by the National Assembly] (consolidation / restatement of various local government legislation, including provision for the creation and dissolution of community councils; provision for amalgamation of unitary authorities)

Local Government Democracy Act 2013 [passed by the National Assembly] (Updated provisions for boundary reviews, including merging or altering principal authority areas)

(ii) Scotland

Burgh Reform Act 1833 (standardisation of franchise in burghs, annual elections)

Local Government Act 1889 (creation of county councils)

Local Government Act 1894 (creation of parish councils)

Local Government (Scotland) Act 1929 (creation of district councils, to be undertaken by county councils; transfer of functions to county councils)

Local Government (Scotland) Act 1973 (creation of nine regions, 53 districts, and three all-purpose island councils; replacement of parish councils by 'community councils')

Local Government etc. (Scotland) Act 1994 (replacement of regions and districts with 32 unitary authorities (including the three island councils)

(iii) Northern Ireland

Municipal Corporations (Ireland) Act 1840 (representation and extra powers for larger town and cities)

Local Government (Ireland) Act 1898 (elected council in each county, with six county boroughs in Ireland (including Belfast and Londonderry); rural district councils covering public health and housing)

Public Health and Local Government Act 1946 (health and social welfare functions transferred to county councils, including functions of Poor Law Boards of Guardians; education nominally transferred to county councils)

Local Government (Northern Ireland) Act 1972 (26 district councils to replace counties, county boroughs, urban and rural district councils; introduction of local and regional rate; joint health and social services boards, education and library boards)

Local Government (Boundaries) Act (Northern Ireland) 2008 [passed by the Northern Ireland Assembly] (established 11 new local authority areas to replace the 26 district councils)

Local Government Act (Northern Ireland) 2014 [passed by the Northern Ireland Assembly] (constitutional provisions for 11 new local authorities, including type of executive, member conduct, general power of competence, performance improvement, access to meetings).



480   Scotland Act 1998 c.46 s1 Back

481   Scotland Act 1998 c.46 s2(1) Back

482   Scotland Act 1998 c.46 s2(2) Back

483   Scotland Act 1998 c.46 s2(3) Back

484   Scotland Act 1998 c.46 s2(4) Back

485   Scotland Act 1998 c.46 s2(5) Back

486   Scotland Act 1998 c.46 s2(6) Back

487   Scotland Act 1998 c.46 s3(1) Back

488   Scotland Act 1998 c.46 s3(2) Back

489   Scotland Act 1998 c.46 s3(3) Back

490   Scotland Act 1998 c.46 s3(4) Back

491   Scotland Act 1998 c.46 s5(1) Back

492   Scotland Act 1998 c.46 s5(2) Back

493   Scotland Act 1998 c.46 s5(3) Back

494   Scotland Act 1998 c.46 s5(4) Back

495   Scotland Act 1998 c.46 s5(5) Back

496   Scotland Act 1998 c.46 s5(6) Back

497   Scotland Act 1998 c.46 s5(7) Back

498   Scotland Act 1998 c.46 s5(8) Back

499   Scotland Act 1998 c.46 s5(9) Back

500   Scotland Act 1998 c.46 s6(2) Back

501   Scotland Act 1998 c.46 s6(3) Back

502   Scotland Act 1998 c.46 s7(1) Back

503   Scotland Act 1998 c.46 s7(2) Back

504   Scotland Act 1998 c.46 s7(3) Back

505   Scotland Act 1998 c.46 s7(4) Back

506   Scotland Act 1998 c.46 s8(1) Back

507   Scotland Act 1998 c.46 s8(2) Back

508   Scotland Act 1998 c.46 s8(3) Back

509   Scotland Act 1998 c.46 s8(4) Back

510   Scotland Act 1998 c.46 s8(5) Back

511   Scotland Act 1998 c.46 s8(6) Back

512   Scotland Act 1998 c.46 s8(7) Back

513   Scotland Act 1998 c.46 s8(8) Back

514   Scotland Act 1998 c.46 s8(9) Back

515   Scotland Act 1998 c.46 s9 Back

516   Scotland Act 1998 c.46 s10 Back

517   Scotland Act 1998 c.46 s13 Back

518   Scotland Act 1998 c.46 s14 Back

519   Scotland Act 1998 c.46 s15, 16 Back

520   Scotland Act 1998 c.46 s11 Back

521   Scotland Act 1998 c.46 s19 Back

522   Scotland Act 1998 c.46 s20 Back

523   Scotland Act 1998 c.46 s28 Back

524   However the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament: Memorandum of Understanding (Cm 4444, 1999) p.12 Back

525   Scotland Act 1998 c.46 s29 Back

526   Scotland Act 1998 c.46 s30 Back

527   Scotland Act 1998 c.46 s31 Back

528   Scotland Act 1998 c.46 s32 Back

529   Scotland Act 1998 c.46 s33  Back

530   Scotland Act 1998 c.46 s44 Back

531   Scotland Act 1998 c.46 s45  Back

532   Scotland Act 1998 c.46 s46 Back

533   Scotland Act 1998 c.46 s47 Back

534   Scotland Act 1998 c.46 s48 Back

535   Scotland Act 1998 c.46 s52 Back

536   Scotland Act 1998 c.46 s53 Back

537   Scotland Act 1998 c.46 s54 Back

538   Scotland Act 1998 c.46 s55 Back

539   Scotland Act 1998 c.46 s56 Back

540   Scotland Act 1998 c.46 s57 Back

541   Scotland Act 1998 c.46 s64(1) Back

542   Scotland Act 1998 c.46 s64(2) Back

543   Scotland Act 1998 c.46 s64(3) Back

544   Scotland Act 1998 c.46 s64(4) Back

545   Scotland Act 1998 c.46 s64(5) Back

546   Scotland Act 1998 c.46 s64(6) Back

547   Scotland Act 1998 c.46 s64(7) Back

548   Scotland Act 1998 c.46 s64(8) Back

549   Scotland Act 1998 c.46 s66(1) Back

550   Scotland Act 1998 c.46 s66(2) Back

551   Scotland Act 1998 c.46 s66(3) Back

552   Scotland Act 1998 c.46 s66(4) Back

553   Scotland Act 1998 c.46 s67(1) Back

554   Scotland Act 1998 c.46 s67(2) Back

555   Scotland Act 1998 c.46 s67(3) Back

556   Scotland Act 1998 c.46 s67(4) Back

557   Scotland Act 1998 c.46 s68(1) Back

558   Scotland Act 1998 c.46 s68(2) Back

559   Scotland Act 1998 c.46 s69(1) Back

560   Scotland Act 1998 c.46 s69(2) Back

561   Scotland Act 1998 c.46 s69(3) Back

562   Scotland Act 1998 c.46 s69(4) Back

563   Scotland Act 1998 c.46 s69(5) Back

564   Scotland Act 1998 c.46 s70(1) Back

565   Scotland Act 1998 c.46 s70(2) Back

566   Scotland Act 1998 c.46 s70(3) Back

567   Scotland Act 1998 c.46 s70(4) Back

568   Scotland Act 1998 c.46 s70(5) Back

569   Scotland Act 1998 c.46 s70(6) Back

570   Scotland Act 1998 c.46 s70(7) Back

571   Scotland Act 1998 c.46 s70(8) Back

572   Government of Wales Act 2006 c.32 s1 Back

573   Government of Wales Act 2006 c.32 s2 Back

574   Government of Wales Act 2006 c.32 s3(1) Back

575   Government of Wales Act 2006 c.32 s3(2) Back

576   Government of Wales Act 2006 c.32 s3(3) Back

577   Government of Wales Act 2006 c.32 s3(4) Back

578   Government of Wales Act 2006 c.32 s5(1) Back

579   Government of Wales Act 2006 c.32 s5(2) Back

580   Government of Wales Act 2006 c.32 s5(3) Back

581   Government of Wales Act 2006 c.32 s5(4) Back

582   Government of Wales Act 2006 c.32 s5(5) Back

583   Government of Wales Act 2006 c.32 s5(6) Back

584   Government of Wales Act 2006 c.32 s5(7) Back

585   Government of Wales Act 2006 c.32 s6(1) Back

586   Government of Wales Act 2006 c.32 s6(2) Back

587   Government of Wales Act 2006 c.32 s6(3) Back

588   Government of Wales Act 2006 c.32 s6(4) Back

589   Government of Wales Act 2006 c.32 s6(5) Back

590   Government of Wales Act 2006 c.32 s6(6) Back

591   Government of Wales Act 2006 c.32 s7(1) Back

592   Government of Wales Act 2006 c.32 s7(2) Back

593   Government of Wales Act 2006 c.32 s7(3) Back

594   Government of Wales Act 2006 c.32 s7(4) Back

595   Government of Wales Act 2006 c.32 s7(5) Back

596   Government of Wales Act 2006 c.32 s7(6) Back

597   Government of Wales Act 2006 c.32 s7(7) Back

598   Government of Wales Act 2006 c.32 s8 Back

599   Government of Wales Act 2006 c.32 s9 Back

600   Government of Wales Act 2006 c.32 s14 Back

601   Government of Wales Act 2006 c.32 s15 Back

602   Government of Wales Act 2006 c.32 s16(1) Back

603   Government of Wales Act 2006 c.32 s16(1) Back

604   Government of Wales Act 2006 c.32 s16(3) Back

605   Government of Wales Act 2006 c.32 s16(4) Back

606   Government of Wales Act 2006 c.32 s16(5) Back

607   Government of Wales Act 2006 c.32 s16(6) Back

608   Government of Wales Act 2006 c.32 s17(1) Back

609   Government of Wales Act 2006 c.32 s17(2) Back

610   Government of Wales Act 2006 c.32 s17(3) Back

611   Government of Wales Act 2006 c.32 s17(4) Back

612   Government of Wales Act 2006 c.32 s25 Back

613   Government of Wales Act 2006 c.32 s26 Back

614   Government of Wales Act 2006 c.32 s93 Back

615   Government of Wales Act 2006 c.32 s94 Back

616   Government of Wales Act 2006 c.32 s95 Back

617   Government of Wales Act 2006, c.32 s96 Back

618   Government of Wales Act 2006 c.32 s99 Back

619   Government of Wales Act 2006 c.32 s102 Back

620   Government of Wales Act 2006 c.32 s107 Back

621   Government of Wales Act 2006 c.32 s108 Back

622   Government of Wales Act 2006 c.32 s109 Back

623   Government of Wales Act 2006 c.32 s112 Back

624   Government of Wales Act 2006 c.32 s115 Back

625   Government of Wales Act 2006 c.32 s45 Back

626   Government of Wales Act 2006 c.32 s46 Back

627   Government of Wales Act 2006 c.32 s47 Back

628   Government of Wales Act 2006 c.32 s48 Back

629   Government of Wales Act 2006 c.32 s56 Back

630   Government of Wales Act 2006 c.32 s57 Back

631   Government of Wales Act 2006 c.32 s58 Back

632   Government of Wales Act 2006 c.32 s117 Back

633   Government of Wales Act 2006 c.32 s118 Back

634   Government of Wales Act 2006 c.32 s121 Back

635   Government of Wales Act 2006 c.32 s122 Back

636   Northern Ireland Act 1998 c.47 s1 Back

637   Northern Ireland Act 1998 c.47 s31 Back

638   Northern Ireland Act 1998 c.47 s32 Back

639   Northern Ireland Act 1998 c.47 s33 Back

640   Northern Ireland Act 1998 c.47 s34 Back

641   Northern Ireland Act 1998 c.47 s35  Back

642   Northern Ireland Act 1998 c.47 s36 Back

643   Northern Ireland Act 1998 c.47 s39 Back

644   Northern Ireland Act 1998 c.47 s5 Back

645   Northern Ireland Act 1998 c.47 s6 Back

646   Northern Ireland Act 1998 c.47 s7 Back

647   Northern Ireland Act 1998 c.47 s8 Back

648   Northern Ireland Act 1998 c.47 s16A Back

649   Northern Ireland Act 1998 c.47 s16B Back

650   Northern Ireland Act 1998 c.47 s17 Back

651   Northern Ireland Act 1998 c.47 s22 Back

652   Northern Ireland Act 1998 c.47 s23 Back

653   Northern Ireland Act 1998 c.47 s57 Back

654   Northern Ireland Act 1998 c.47 s58 Back

655   Greater London Authority Act 1999 c.29 s1 Back

656   Greater London Authority Act 1999 c.29 s2 Back

657   Greater London Authority Act 1999 c.29 s30 Back

658   Greater London Authority Act 1999 c.29 s31 Back

659   Greater London Authority Act 1999 c.29 s35 Back

660   Greater London Authority Act 1999 c.29 s141 Back

661   Local Government Act 1972 c.70 s1 Back

662   Local Government Act 1972 c.70 s2 Back

663   Local Government Act 1972 c.70 s7 Back

664   Local Government Act 1972 c.70 s8 Back

665   Local Government Act 1972 c.70 s9 Back

666   Local Government Act 1972 c.70 s14 Back

667   Localism Act 2011, s.1 with territorial application to England and Wales: s.239. Back

668   The Scottish Local Government Elections Order 2007 made by Scottish ministers under the authority of the Local Governance (Scotland) Act 2004, an Act of the Scottish Parliament, have implemented the Single Transferable Vote for Scottish local government elections. Back


 
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© Parliamentary copyright 2014
Prepared 10 July 2014