Government of Wales Bill

House of Lords

Session 2005 - 06
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Other Bills before Parliament

Government of Wales Bill

Government of Wales Bill
Schedule 3 — Transfer etc. of functions: further provisions
Part 2 — Exercise of transferred functions
104

Part 2
Exercise of transferred functions
Community obligations
5
Any power of a Minister of the Crown to make subordinate legislation
which has been transferred by an Order in Council under section 58
5
continues to be exercisable by the Minister of the Crown (as it would be had
it not been transferred) for the purpose of—
(a)
implementing any Community obligation of the United Kingdom,
(b)
enabling any such obligation to be implemented,
(c)
enabling any rights enjoyed or to be enjoyed by the United Kingdom
10
under or by virtue of the Community Treaties to be exercised, or
(d)
dealing with matters arising out of or related to any such obligation
or rights or the operation of section 2(1) of the European
Communities Act 1972 (c. 68).
Agreement or consultation: Ministers and Parliament
15
6
An Order in Council under section 58 which includes provision—
(a)
transferring to the Welsh Ministers, the First Minister or the Counsel
General any function so far as exercisable by a Minister of the Crown
in relation to a cross-border body or an English border area, or
(b)
directing that any function is to be exercisable by the Welsh
20
Ministers, the First Minister or the Counsel General in relation to a
cross-border body or an English border area concurrently with the
Minister of the Crown by whom it is exercisable,

may provide that (either generally or to such extent as may be specified in
the Order in Council) the function may be exercised by the Welsh Ministers,
25
the First Minister or the Counsel General only with the agreement of, or after
consultation with, a Minister of the Crown.
7     (1)
This paragraph applies where a function is exercisable by a Minister of the
Crown—
(a)
only with the agreement of, or after consultation with, another
30
Minister of the Crown, or
(b)
only with the authorisation of Parliament or either House of
Parliament.
      (2)
If an Order in Council under section 58 includes provision transferring the
function to the Welsh Ministers, the First Minister or the Counsel General it
35
is to be exercisable free from that requirement unless the Order in Council
provides otherwise.
      (3)
If an Order in Council under that section includes provision directing that
the function is to be exercisable by the Welsh Ministers, the First Minister or
the Counsel General concurrently with the Minister of the Crown by whom
40
it is exercisable, the Order in Council may provide that is to be exercisable
free from that requirement.
Agreement or consultation etc: Assembly and Assembly Commission
8     (1)
An Order in Council under section 58 may make provision for a function to
be exercisable by the Welsh Ministers, the First Minister or the Counsel
45

Government of Wales Bill
Schedule 3 — Transfer etc. of functions: further provisions
Part 2 — Exercise of transferred functions
105

General only with the authorisation of, or after consultation with, the
Assembly or the Assembly Commission.
      (2)
An Order in Council under section 58 making provision for a function to be
exercisable by the Welsh Ministers, the First Minister or the Counsel General
may, by virtue of subsection (3) of that section, require the Welsh Ministers,
5
the First Minister or the Counsel General—
(a)
to lay a report before the Assembly, or
(b)
to send documents to the Clerk,

in connection with the exercise of the function.
Parliamentary and Assembly procedure
10
9     (1)
This paragraph applies where a function to make subordinate legislation
(including a function conferred or imposed by or by virtue of this Act or an
Act passed after this Act) is transferred to, or made exercisable by, the Welsh
Ministers, the First Minister or the Counsel General by an Order in Council
under section 58.
15
      (2)
If, immediately before the coming into force of the provisions of the Order
in Council relating to the function, a provision of any of the descriptions
specified in sub-paragraph (3) applied to its exercise by a Minister of the
Crown—
(a)
that provision does not apply to its exercise by the Welsh Ministers,
20
the First Minister or the Counsel General unless the case is one to
which sub-paragraph (6) applies, but
(b)
(whether or not the case is one to which that sub-paragraph applies)
that provision has effect in relation to its exercise by the Welsh
Ministers, the First Minister or the Counsel General as if any
25
reference in it to Parliament or either House of Parliament were (or,
if it is such a case, included) a reference to the Assembly.
      (3)
The descriptions of provision referred to in sub-paragraph (2) are—
(a)
provision requiring any instrument made in the exercise of the
function, or a draft of any such instrument, to be laid before
30
Parliament or either House of Parliament,
(b)
provision for the annulment or approval of any such instrument or
draft by or in pursuance of a resolution of either House of Parliament
or of both Houses, and
(c)
provision prohibiting the making of any such instrument without
35
such approval.
      (4)
If, immediately before the coming into force of the provisions of the Order
in Council relating to the function, a provision of either of the descriptions
specified in sub-paragraph (5) applied to its exercise by a Minister of the
Crown—
40
(a)
that provision does not apply to its exercise by the Welsh Ministers,
the First Minister or the Counsel General unless the case is one to
which sub-paragraph (6) or (7) applies, but
(b)
(whether or not the case is one to which either of those sub-
paragraphs applies) any instrument made in the exercise of the
45
function by the Welsh Ministers, the First Minister or the Counsel
General is (or, if it is such a case, is also) subject to the procedure in
the Assembly specified by the standing orders.

Government of Wales Bill
Schedule 3 — Transfer etc. of functions: further provisions
Part 2 — Exercise of transferred functions
106

      (5)
The descriptions of provision referred to in sub-paragraph (4) are—
(a)
provision for any instrument made in the exercise of the function to
be a provisional order (that is, an order which requires to be
confirmed by Act of Parliament), and
(b)
provision requiring any order (within the meaning of the Statutory
5
Orders (Special Procedure) Act 1945 (9 & 10 Geo. 6 c. 18)) made in
the exercise of the function to be subject to special parliamentary
procedure.
      (6)
This sub-paragraph applies in any case if the instrument made in the
exercise of the function or (if provision specified in sub-paragraph (3)(a) or
10
(b) applied to a draft of an instrument made in the exercise of the function)
a draft of an instrument to be so made—
(a)
contains subordinate legislation made or to be made by a Minister of
the Crown or government department (whether or not jointly with
the Welsh Ministers, the First Minister or the Counsel General),
15
(b)
contains (or confirms or approves) subordinate legislation relating to
an English border area, or
(c)
contains (or confirms or approves) subordinate legislation relating to
a cross-border body (and not relating only to the exercise of
functions, or the carrying on of activities, by the body in or with
20
respect to Wales or a part of Wales).
      (7)
This sub-paragraph applies in any case if, immediately before the coming
into force of the provisions of the Order in Council relating to the function,
a provision of the description specified in sub-paragraph (5)(b) applied to an
instrument made in exercise of the function by a Minister of the Crown and
25
the Order in Council provided that—
(a)
any order made by the Welsh Ministers, the First Minister or the
Counsel General in the exercise of the function, or
(b)
any order so made in circumstances including those of the case,

is to be subject to special parliamentary procedure.
30
      (8)
In this paragraph “make” includes confirm or approve and related
expressions (except “made exercisable”) are to be construed accordingly; but
an instrument (or draft) does not fall within sub-paragraph (6)(a) just
because it contains subordinate legislation made (or to be made) by the
Welsh Ministers, the First Minister or the Counsel General with the
35
agreement of a Minister of the Crown or government department.
Laying of reports and statements
10    (1)
This paragraph applies where—
(a)
a function to make or receive a report or statement (including a
function conferred or imposed by or by virtue of an Act passed after
40
this Act) is transferred to, or made exercisable by, the Welsh
Ministers, the First Minister or the Counsel General by an Order in
Council under section 58, and
(b)
immediately before the coming into force of the provisions of the
Order in Council relating to the function, any enactment made
45
provision (“provision for Parliamentary laying”) for a report or
statement made or received in the exercise of the function to be laid
before Parliament or either House of Parliament by the person
making or receiving it.

Government of Wales Bill
Schedule 3 — Transfer etc. of functions: further provisions
Part 3 — Supplementary
107

      (2)
The provision for Parliamentary laying applies to the exercise of the function
by the Welsh Ministers, the First Minister or the Counsel General as if it
required the report or statement to be laid before the Assembly instead of
before Parliament or either House of Parliament.
      (3)
In this paragraph references to a report or statement include any other
5
document (except one containing subordinate legislation).
Powers to lend money
11    (1)
This paragraph applies where a power to lend money (including a power
conferred by or by virtue of an Act passed after this Act) is transferred to the
Welsh Ministers by an Order in Council under section 58; but subject to any
10
provision to the contrary in the Order in Council.
      (2)
Sub-paragraph (3) applies to any sums which, for the purpose or as a result
of the exercise of the power, would be required (apart from that sub-
paragraph)—
(a)
to be issued by the Treasury out of the National Loans Fund, or
15
(b)
to be paid into that Fund.
      (3)
Those sums are instead—
(a)
to be charged on the Welsh Consolidated Fund, or
(b)
to be paid into that Fund.
      (4)
The following provisions apply where—
20
(a)
the power was exercised by a Minister of the Crown before the
transfer, and
(b)
the sums required for the exercise of the power were issued by the
Treasury out of the National Loans Fund.
      (5)
Any amount payable by way of repayment of, or of interest on, the loan is to
25
be paid to the Welsh Ministers and into the Welsh Consolidated Fund
(instead of to the Minister of the Crown and into the National Loans Fund).
      (6)
Amounts equal to those which are to be received by the Welsh Ministers in
repayment of principal are to be treated as being loans made to the Welsh
Ministers by the Secretary of State on the date of the transfer.
30
      (7)
Such loans are to be repaid to the Secretary of State at such times and by such
methods, and interest is to be paid to the Secretary of State at such rates and
at such times, as the Treasury may from time to time determine.
      (8)
Sums required to be paid to the Secretary of State under sub-paragraph (7)
are to be charged on the Welsh Consolidated Fund.
35
      (9)
Sums received by the Secretary of State under sub-paragraph (7) are to be
paid into the National Loans Fund.
Part 3
Supplementary
References to Minister of the Crown etc
40
12
References in section 58 and this Schedule to a Minister of the Crown include
references to—

Government of Wales Bill
Schedule 4 — Transfers of ministerial property, rights and liabilities
108

(a)
two or more Ministers of the Crown acting jointly, and
(b)
an officer of a Minister of the Crown or of a government department,

and, in relation to functions of such an officer, the references in section 58(1)
and this Schedule to the Welsh Ministers include references to a member of
the staff of the Welsh Assembly Government.
5
Saving
13
An Order in Council under section 58 which includes provision—
(a)
transferring a function exercisable by a Minister of the Crown, or
(b)
directing that a function is to be exercisable only with the agreement
of, or after consultation with, any of the Welsh Ministers, the First
10
Minister or the Counsel General,

does not affect the validity of anything done by or in relation to the Minister
of the Crown before the coming into force of the Order in Council.
Schedule 4
Section 87

Transfers of ministerial property, rights and liabilities
15
General transfer of property, rights and liabilities
1     (1)
The property, rights and liabilities to which, at the coming into force of an
Order in Council under section 58, a Minister of the Crown is entitled or
subject in connection with any function exercisable by the Minister of the
Crown and transferred by the Order in Council are transferred to and vest
20
in the transferee of the function.
      (2)
In this Schedule “the transferee”, in relation to a function transferred by an
Order in Council under section 58, means whichever of the Welsh Ministers,
the First Minister or the Counsel General may exercise the function by virtue
of the Order in Council.
25
      (3)
Anything (including legal proceedings) which relates to—
(a)
any function exercisable by a Minister of the Crown which is
transferred by an Order in Council under section 58, or
(b)
any property, rights or liabilities transferred by sub-paragraph (1) as
the result of the transfer of any such function by such an Order in
30
Council,

and which is in the process of being done by or in relation to the Minister of
the Crown immediately before the coming into force of the Order in Council
may be continued by or in relation to the transferee of the function.
      (4)
Anything which was done by a Minister of the Crown for the purpose of or
35
in connection with—
(a)
any function exercisable by the Minister of the Crown which is
transferred by an Order in Council under section 58, or
(b)
any property, rights or liabilities transferred by sub-paragraph (1) as
the result of the transfer of any such function by such an Order in
40
Council,

and which is in effect immediately before the coming into force of the Order
in Council has effect as if done by the transferee of the function.

Government of Wales Bill
Schedule 4 — Transfers of ministerial property, rights and liabilities
109

      (5)
In any instruments, contracts or legal proceedings which relate to—
(a)
any function exercisable by a Minister of the Crown which is
transferred by an Order in Council under section 58, or
(b)
any property, rights or liabilities transferred by sub-paragraph (1) as
the result of the transfer of any such function by such an Order in
5
Council,

and which are made or commenced before the coming into force of the
Order in Council, the transferee of the function is substituted for the
Minister of the Crown.
2     (1)
An Order in Council under section 58 may provide that all or any of the
10
provisions of paragraph 1—
(a)
do not apply in relation to the transfer of functions by the Order in
Council or to the property, rights and liabilities connected with the
functions,
(b)
are to apply only in relation to the transfer of particular functions by
15
the Order in Council or to particular property, rights or liabilities
connected with the functions transferred by the Order in Council,
(c)
do not apply in relation to the transfer of particular functions by the
Order in Council or to particular property, rights or liabilities
connected with the functions transferred by the Order in Council, or
20
(d)
apply with modifications in relation to the transfer of a particular
function by the Order in Council or to particular property, rights or
liabilities connected with the function transferred by the Order in
Council in a case where, by virtue of provision made under section
58(2), there is more than one transferee of that function.
25
      (2)
Paragraph 1 does not apply to rights or liabilities relating to the employment
of persons in Crown employment (as defined in section 191(3) of the
Employment Rights Act 1996 (c. 18)).
Power to make specific transfers etc.
3     (1)
The Secretary of State may by order provide for the transfer to the Welsh
30
Ministers, the First Minister or the Counsel General of—
(a)
any specified property, rights or liabilities, or
(b)
property, rights or liabilities of any specified description,

to which a Minister of the Crown is entitled or subject.
      (2)
An order under sub-paragraph (1) may provide for the transfer of any
35
property, rights or liabilities to have effect subject to exceptions or
reservations specified in or determined under the order.
      (3)
An order under sub-paragraph (1) may provide—
(a)
for the creation in favour of a Minister of the Crown of interests in,
or rights over, property transferred to the Welsh Ministers, the First
40
Minister or the Counsel General,
(b)
for the creation in favour of the Welsh Ministers, the First Minister or
the Counsel General of interests in, or rights over, property retained
by a Minister of the Crown, or
(c)
for the creation of new rights and liabilities between the Welsh
45
Ministers, the First Minister or the Counsel General on the one hand
and a Minister of the Crown on the other.

Government of Wales Bill
Schedule 5 — Assembly Measures
Part 1 — Matters
110

      (4)
The Secretary of State may by order make provision for the continuation by
or in relation to the Welsh Ministers, the First Minister or the Counsel
General of—
(a)
any specified thing, or
(b)
anything of a specified description,
5

commenced by or in relation to a Minister of the Crown.
      (5)
The Secretary of State may by order make provision for—
(a)
any specified thing, or
(b)
anything of a specified description,

done by a Minister of the Crown to have effect as if done by the Welsh
10
Ministers, the First Minister or the Counsel General.
      (6)
The Secretary of State may by order make provision for the substitution of
the Welsh Ministers, the First Minister or the Counsel General for any
Minister of the Crown in—
(a)
any specified instrument, contract or legal proceedings, or
15
(b)
any instrument, contract or legal proceedings of a specified
description.
      (7)
An order under this paragraph may be made in consequence of the making
of an Order in Council under section 58 or in any other circumstances in
which the Secretary of State considers it appropriate to make such an order.
20
      (8)
A statutory instrument containing an order under this paragraph is subject
to annulment in pursuance of a resolution of either House of Parliament.
Supplementary
4     (1)
A certificate issued by the Secretary of State that any property has been
transferred by—
25
(a)
paragraph 1, or
(b)
an order under paragraph 3,

is conclusive evidence of the transfer.
      (2)
Paragraph 1, and orders under paragraph 3, have effect in relation to
property, rights or liabilities to which they apply in spite of any provision (of
30
whatever nature) which would otherwise prevent or restrict the transfer of
the property, rights or liabilities.
Schedule 5
Section 93

Assembly Measures
Part 1
35
Matters

Field 1: agriculture, fisheries, forestry and rural development

Field 2: ancient monuments and historic buildings

Field 3: culture