Government of Wales Bill

House of Lords

Session 2005 - 06
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Government of Wales Bill

Government of Wales Bill
Schedule 9 — Devolution issues
Part 2 — Proceedings in England and Wales
139

Part 2
Proceedings in England and Wales
Application of Part 2
3
This Part applies in relation to devolution issues in proceedings in England
and Wales.
5
Institution of proceedings
4     (1)
Proceedings for the determination of a devolution issue may be instituted by
the Attorney General or the Counsel General.
      (2)
The Counsel General may defend any such proceedings instituted by the
Attorney General.
10
      (3)
This paragraph does not limit any power to institute or defend proceedings
exercisable apart from this paragraph by any person.
Notice of devolution issue
5     (1)
A court or tribunal must order notice of any devolution issue which arises in
any proceedings before it to be given to the Attorney General and the
15
Counsel General (unless a party to the proceedings).
      (2)
A person to whom notice is given in pursuance of sub-paragraph (1) may
take part as a party in the proceedings, so far as they relate to a devolution
issue.
Reference of devolution issue to High Court or Court of Appeal
20
6
A magistrates’ court may refer any devolution issue which arises in civil
proceedings before it to the High Court.
7     (1)
A court may refer any devolution issue which arises in civil proceedings
before it to the Court of Appeal.
      (2)
Sub-paragraph (1) does not apply—
25
(a)
to a magistrates’ court, the Court of Appeal or the Supreme Court, or
(b)
to the High Court if the devolution issue arises in proceedings on a
reference under paragraph 6.
8
A tribunal from which there is no appeal must refer any devolution issue
which arises in proceedings before it to the Court of Appeal; and any other
30
tribunal may make such a reference.
9
A court, other than the Court of Appeal or the Supreme Court, may refer any
devolution issue which arises in criminal proceedings before it to—
(a)
the High Court if the proceedings are summary proceedings, or
(b)
the Court of Appeal if the proceedings are proceedings on
35
indictment.

Government of Wales Bill
Schedule 9 — Devolution issues
Part 3 — Proceedings in Scotland
140

References from Court of Appeal to Supreme Court
10
The Court of Appeal may refer any devolution issue which arises in
proceedings before it (otherwise than on a reference under paragraph 7, 8 or
9) to the Supreme Court.
Appeals from superior courts to Supreme Court
5
11
An appeal against a determination of a devolution issue by the High Court
or the Court of Appeal on a reference under paragraph 6, 7, 8 or 9 lies to the
Supreme Court but only—
(a)
with permission of the court from which the appeal lies, or
(b)
failing such permission, with permission of the Supreme Court.
10
Part 3
Proceedings in Scotland
Application of Part 3
12
This Part applies in relation to devolution issues in proceedings in Scotland.
Institution of proceedings
15
13    (1)
Proceedings for the determination of a devolution issue may be instituted by
the Advocate General for Scotland.
      (2)
The Counsel General may defend any such proceedings instituted by the
Advocate General for Scotland.
      (3)
This paragraph does not limit any power to institute or defend proceedings
20
exercisable apart from this paragraph by any person.
Intimation of devolution issue
14    (1)
A court or tribunal must order intimation of any devolution issue which
arises in any proceedings before it to be given to the Advocate General for
Scotland and the Counsel General (unless a party to the proceedings).
25
      (2)
A person to whom notice is given in pursuance of sub-paragraph (1) may
take part as a party in the proceedings, so far as they relate to a devolution
issue.
Reference of devolution issue to higher court
15
A court, other than any court consisting of three or more judges of the Court
30
of Session or the Supreme Court, may refer any devolution issue which
arises in civil proceedings before it to the Inner House of the Court of
Session.
16
A tribunal from which there is no appeal must refer any devolution issue
which arises in proceedings before it to the Inner House of the Court of
35
Session; and any other tribunal may make such a reference.

Government of Wales Bill
Schedule 9 — Devolution issues
Part 4 — Proceedings in Northern Ireland
141

17
A court, other than any court consisting of two or more judges of the High
Court of Justiciary, may refer any devolution issue which arises in criminal
proceedings before it to the High Court of Justiciary.
References from superior courts to Supreme Court
18
Any court consisting of three or more judges of the Court of Session may
5
refer any devolution issue which arises in proceedings before it (otherwise
than on a reference under paragraph 15 or 16) to the Supreme Court.
19
Any court consisting of two or more judges of the High Court of Justiciary
may refer any devolution issue which arises in proceedings before it
(otherwise than on a reference under paragraph 17) to the Supreme Court.
10
Appeals from superior courts to Supreme Court
20
An appeal against a determination of a devolution issue by the Inner House
of the Court of Session on a reference under paragraph 15 or 16 lies to the
Supreme Court.
21
An appeal against a determination of a devolution issue by—
15
(a)
a court consisting of two or more judges of the High Court of
Justiciary (whether in the ordinary course of proceedings or on a
reference under paragraph 17), or
(b)
a court consisting of three or more judges of the Court of Session
from which there is no appeal to the Supreme Court apart from this
20
paragraph,

lies to the Supreme Court, but only with permission of the court from which
the appeal lies or, failing such permission, with permission of the Supreme
Court.
Part 4
25
Proceedings in Northern Ireland
Application of Part 4
22
This Part applies in relation to devolution issues in proceedings in Northern
Ireland.
Institution of proceedings
30
23    (1)
Proceedings for the determination of a devolution issue may be instituted by
the Advocate General for Northern Ireland.
      (2)
The Counsel General may defend any such proceedings instituted by the
Advocate General for Northern Ireland.
      (3)
This paragraph does not limit any power to institute or defend proceedings
35
exercisable apart from this paragraph by any person.
Notice of devolution issue
24    (1)
A court or tribunal must order notice of any devolution issue which arises in
any proceedings before it to be given to the Advocate General for Northern
Ireland and the Counsel General (unless a party to the proceedings).
40

Government of Wales Bill
Schedule 9 — Devolution issues
Part 5 — General
142

      (2)
A person to whom notice is given in pursuance of sub-paragraph (1) may
take part as a party in the proceedings, so far as they relate to a devolution
issue.
Reference of devolution issue to Court of Appeal
25
A court, other than the Court of Appeal in Northern Ireland or the Supreme
5
Court, may refer any devolution issue which arises in any proceedings
before it to the Court of Appeal in Northern Ireland.
26
A tribunal from which there is no appeal must refer any devolution issue
which arises in proceedings before it to the Court of Appeal in Northern
Ireland; and any other tribunal may make such a reference.
10
References from Court of Appeal to Supreme Court
27
The Court of Appeal in Northern Ireland may refer any devolution issue
which arises in proceedings before it (otherwise than on a reference under
paragraph 25 or 26) to the Supreme Court.
Appeals from Court of Appeal to Supreme Court
15
28
An appeal against a determination of a devolution issue by the Court of
Appeal in Northern Ireland on a reference under paragraph 25 or 26 lies to
the Supreme Court but only—
(a)
with permission of the Court of Appeal in Northern Ireland, or
(b)
failing such permission, with permission of the Supreme Court.
20
Part 5
General
Direct references to Supreme Court
29    (1)
The relevant officer may require any court or tribunal to refer to the Supreme
Court any devolution issue which has arisen in any proceedings before it to
25
which that person is a party.
      (2)
In sub-paragraph (1) “the relevant officer” means—
(a)
in relation to proceedings in England and Wales, the Attorney
General or the Counsel General,
(b)
in relation to proceedings in Scotland, the Advocate General for
30
Scotland, and
(c)
in relation to proceedings in Northern Ireland, the Advocate General
for Northern Ireland.
30    (1)
The Attorney General or the Counsel General may refer to the Supreme
Court any devolution issue which is not the subject of proceedings.
35
      (2)
Where a reference is made under sub-paragraph (1) by the Attorney General
in relation to a devolution issue which relates to the proposed exercise of a
function by the Welsh Ministers, the First Minister or the Counsel General—
(a)
the Attorney General must notify the Counsel General of that fact,
and
40

Government of Wales Bill
Schedule 10 — Minor and consequential amendments
143

(b)
the function must not be exercised by the Welsh Ministers, the First
Minister or the Counsel General in the manner proposed during the
period beginning with the receipt of the notification and ending with
the reference being decided or otherwise disposed of.
Costs
5
31    (1)
A court or tribunal before which any proceedings take place may take
account of any additional expense of the kind mentioned in sub-paragraph
(3) in deciding any question as to costs or expenses.
      (2)
In deciding any such question the court or tribunal may award the whole or
part of the additional expense as costs or expenses to the party who incurred
10
it (whatever the decision on the devolution issue).
      (3)
The additional expense is any additional expense which the court or tribunal
considers that any party to the proceedings has incurred as a result of the
participation of any person in pursuance of paragraph 5, 14 or 24.
Procedure of courts and tribunals
15
32
Any power to make provision for regulating the procedure before any court
or tribunal includes power to make provision for the purposes of this
Schedule including, in particular, provision—
(a)
for prescribing the stage in the proceedings at which a devolution
issue is to be raised or referred,
20
(b)
for the staying or sisting of proceedings for the purpose of any
proceedings under this Schedule, and
(c)
for determining the manner in which and the time within which any
notice or intimation is to be given.
References to be for decision
25
33
Any function conferred by this Schedule to refer a devolution issue to a court
is to be construed as a function of referring the issue to the court for decision.
Schedule 10
Section 159

Minor and consequential amendments
Statutory Instruments Act 1946 (c. 36)
30
1
The Statutory Instruments Act 1946 is amended as follows.
2
In section 1 (definition of “statutory instrument”), for subsection (1A)
substitute—
“(1A)
Where by any Act power to make, confirm or approve orders, rules,
regulations or other subordinate legislation is conferred on the
35
Welsh Ministers and the power is expressed to be exercisable by
statutory instrument, any document by which that power is
exercised shall be known as a “statutory instrument” and the
provisions of this Act shall apply to it accordingly.”

Government of Wales Bill
Schedule 10 — Minor and consequential amendments
144

3
After section 11 insert—
“11A
Application in relation to Wales
(1)
References in this Act to any Act include references to any Measure
or Act of the National Assembly for Wales.
(2)
Sections 4 to 7 and 8(1)(b) apply as if the references in them to—
5
(a)
Parliament,
(b)
either or each House of Parliament, or
(c)
both Houses of Parliament,

include references to the National Assembly for Wales.
(3)
In the application of subsection (1) of section 4 by virtue of subsection
10
(2), the reference to the Lord Chancellor and the Speaker of the
House of Commons is to the Presiding Officer of the National
Assembly for Wales.
(4)
Where—
(a)
by any Act it is provided that any statutory instrument shall
15
be subject to annulment in pursuance of a resolution of the
National Assembly for Wales, and
(b)
a copy of the instrument is not laid before that Assembly at
least 21 days before the instrument comes into operation,

notification shall forthwith be sent to the Presiding Officer of that
20
Assembly drawing attention to the fact that copies of the instrument
have yet to be laid before that Assembly and explaining why such
copies were not so laid at least 21 days before the instrument comes
into operation.
(5)
In the application of section 5 by virtue of subsection (2)—
25
(a)
the reference in subsection (1) of that section to a resolution
that an Address be presented praying that the instrument be
annulled is to a resolution that the instrument be annulled,
(b)
in a case where the instrument was made by the Welsh
Ministers, the power in that subsection of Her Majesty to
30
revoke the instrument by Order in Council is a power of the
Welsh Ministers to revoke it by order made by statutory
instrument which is to be laid before the National Assembly
for Wales after being made, and
(c)
the reference in subsection (2) of that section to an Act
35
containing provisions of the kind mentioned in that
subsection is to an Act which contains a power in relation to
which such provisions apply by virtue of the Government of
Wales Act 2006.
(6)
In the application of section 6 by virtue of subsection (2) the reference
40
in subsection (2) of that section to an Act which contains provisions
of the kind mentioned in that subsection is to an Act which contains
a power in relation to which such provisions apply by virtue of the
Government of Wales Act 2006.
(7)
In the application of section 7 by virtue of subsection (5) the reference
45
in subsection (1) of that section to any time during which Parliament
is dissolved or prorogued or during which both Houses are
adjourned for more than four days is to any time during which the

Government of Wales Bill
Schedule 10 — Minor and consequential amendments
145

National Assembly for Wales is dissolved or is in recess for more
than four days.
(8)
References in this Act to the Welsh Ministers, other than the second
reference in subsection (5)(b), include the First Minister for Wales
and the Counsel General to the Welsh Assembly Government.”
5
Laying of Documents before Parliament (Interpretation) Act 1948 (c. 59)
4
In section 1 of the Laying of Documents before Parliament (Interpretation)
Act 1948 (meaning of references to laying before Parliament), after
subsection (1) insert—
“(1A)
A reference in any enactment to laying any document before the
10
National Assembly for Wales is (unless the contrary intention
appears) to be construed as a reference to the taking, during any time
when that Assembly is not dissolved, of such action as is specified in
the standing orders of that Assembly as constituting the laying of a
document before that Assembly, even if the action so specified
15
consists (wholly or partly) of action capable of being taken when that
Assembly is in recess.”
Defamation Act 1952 (c. 66)
5
In section 10 of the Defamation Act 1952 (limitation on privilege at elections),
after “local government authority” insert “, to the National Assembly for
20
Wales,”.
Defamation Act (Northern Ireland) 1955 (c. 11 (N.I.))
6
In section 10(1) of the Defamation Act (Northern Ireland) 1955 (limitation on
privilege at elections), after “Scottish Parliament” insert “or to the National
Assembly for Wales”.
25
Public Records Act 1958 (c. 51)
7
In the First Schedule to the Public Records Act 1958 (definition of “public
records”), in the following provisions, for “the Government of Wales Act
1998” substitute “the Government of Wales Act 2006”—
(a)
paragraph 2(2)(e),
30
(b)
paragraph 5,
(c)
paragraph 6, and
(d)
paragraph 7(1).
Parliamentary Commissioner Act 1967 (c. 13)
8
In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc.
35
subject to investigation), in the Note relating to the Environment Agency
and the Note relating to the Forestry Commission, for “the Government of
Wales Act 1998” substitute “the Government of Wales Act 2006”.
Pensions (Increase) Act 1971 (c. 56)
9
In Part 2 of Schedule 2 to the Pensions (Increase) Act 1971 (official pensions),
40
in paragraph 38B, for “section 18(2)(b) of the Government of Wales Act 1998”