Government of Wales Bill

House of Lords

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Government of Wales Bill

Government of Wales Bill
Part 2 — Welsh Assembly Government
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Community law, human rights and international obligations etc.
79
Community law
(1)
A community obligation of the United Kingdom is also an obligation of the
Welsh Ministers if and to the extent that the obligation could be implemented
(or enabled to be implemented) or complied with by the exercise by the Welsh
5
Ministers of any of their functions.
(2)
Subsection (1) does not apply in the case of a Community obligation of the
United Kingdom if—
(a)
it is an obligation to achieve a result defined by reference to a quantity
(whether expressed as an amount, proportion or ratio or otherwise),
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and
(b)
the quantity relates to the United Kingdom (or to an area including the
United Kingdom or to an area consisting of a part of the United
Kingdom which includes the whole or part of Wales).
(3)
But if such a Community obligation could (to any extent) be implemented (or
15
enabled to be implemented) or complied with by the exercise by the Welsh
Ministers of any of their functions, a Minister of the Crown may by order
provide for the achievement by the Welsh Ministers (in the exercise of their
functions) of so much of the result to be achieved under the Community
obligation as is specified in the order.
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(4)
The order may specify the time by which any part of the result to be achieved
by the Welsh Ministers is to be achieved.
(5)
No order is to be made by a Minister of the Crown under subsection (3) unless
the Minister of the Crown has consulted the Welsh Ministers.
(6)
A statutory instrument containing an order under subsection (3) is subject to
25
annulment in pursuance of a resolution of either House of Parliament.
(7)
Where an order under subsection (3) is in force in relation to a Community
obligation, to the extent that the Community obligation involves achieving
what is specified in the order it is also an obligation of the Welsh Ministers
(enforceable as if it were an obligation of the Welsh Ministers under subsection
30
(1)).
(8)
The Welsh Ministers have no power—
(a)
to make, confirm or approve any subordinate legislation, or
(b)
to do any other act,

so far as the subordinate legislation or act is incompatible with Community law
35
or an obligation under subsection (7).
(9)
Subsections (1) and (8) apply to the First Minister and the Counsel General as
to the Welsh Ministers.
80
Human rights
(1)
The Welsh Ministers have no power—
40
(a)
to make, confirm or approve any subordinate legislation, or
(b)
to do any other act,

so far as the subordinate legislation or act is incompatible with any of the
Convention rights.

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(2)
Subsection (1) does not enable a person—
(a)
to bring any proceedings in a court or tribunal, or
(b)
to rely on any of the Convention rights in any such proceedings,

in respect of an act unless that person would be a victim for the purposes of
Article 34 of the Convention if proceedings were brought in the European
5
Court of Human Rights in respect of that act.
(3)
Subsection (2) does not apply to the Attorney General, the Counsel General, the
Advocate General for Scotland, the Advocate General for Northern Ireland or
the Attorney General for Northern Ireland.
(4)
Subsection (1)—
10
(a)
does not apply to an act which, by virtue of subsection (2) of section 6
of the Human Rights Act 1998 (c. 42), is not unlawful under subsection
(1) of that section, and
(b)
does not enable a court or tribunal to award in respect of any act any
damages which it could not award on finding the act unlawful under
15
that subsection.
(5)
Subsection (1) applies to the First Minister and the Counsel General as to the
Welsh Ministers.
(6)
In subsection (2) “the Convention” has the same meaning as in the Human
Rights Act 1998.
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81
International obligations etc.
(1)
If the Secretary of State considers that any action proposed to be taken by the
Welsh Ministers would be incompatible with any international obligation, the
Secretary of State may by order direct that the proposed action is not to be
taken.
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(2)
If the Secretary of State considers that an action capable of being taken by the
Welsh Ministers is required for the purposes of giving effect to any
international obligation, the Secretary of State may by order direct the Welsh
Ministers to take the action.
(3)
If the Secretary of State considers that any subordinate legislation made, or
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which could be revoked, by the Welsh Ministers is incompatible with any
international obligation or the interests of defence or national security, the
Secretary of State may by order revoke the legislation.
(4)
An order under subsection (3) may include provision for the order to have
effect from a date earlier than that on which it is made; but—
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(a)
such a provision does not affect any rights or liabilities acquired or
incurred before the date on which the order is made, and
(b)
no person is to be guilty of an offence merely because of such a
provision.
(5)
The Secretary of State may make an order containing provision such as is
40
specified in subsection (6) where—
(a)
an international obligation is an obligation to achieve a result defined
by reference to a quantity (whether expressed as an amount, proportion
or ratio or otherwise), and

Government of Wales Bill
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(b)
the quantity relates to the United Kingdom (or to an area including the
United Kingdom or to an area consisting of a part of the United
Kingdom which includes the whole or part of Wales).
(6)
The provision referred to in subsection (5) is provision for the achievement by
the Welsh Ministers (in the exercise of their functions) of so much of the result
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to be achieved under the international obligation as is specified in the order.
(7)
The order may specify the time by which any part of the result to be achieved
by the Welsh Ministers is to be achieved.
(8)
Where an order under subsection (5) is in force in relation to an international
obligation, references to the international obligation in subsection (1) to (3) are
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to an obligation to achieve so much of the result to be achieved under the
international obligation as is specified in the order by the time or times so
specified.
(9)
No order is to be made by the Secretary of State under subsections (2), (3) or (5)
unless the Secretary of State has consulted the Welsh Ministers.
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(10)
An order under this section must state the reasons for making it.
(11)
A statutory instrument containing—
(a)
subject to subsection (12), an order under subsection (1), or
(b)
an order under subsection (5),

is (unless a draft of the statutory instrument has been approved by a resolution
20
of each House of Parliament) subject to annulment in pursuance of a resolution
of either House of Parliament.
(12)
A statutory instrument containing only an order under subsection (1) revoking
a previous order under that subsection—
(a)
is not subject to annulment in pursuance of a resolution of either House
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of Parliament, but
(b)
is to be laid before Parliament.
(13)
No order is to be made under subsection (2) or (3) unless a draft of the statutory
instrument containing it has been laid before, and approved by a resolution of,
each House of Parliament.
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(14)
Subsections (1), (2) and (3) apply to the First Minister and the Counsel General
as to the Welsh Ministers; and where subsection (9) operates in relation to an
order under subsection (2) or (3) relating to the First Minister or the Counsel
General the reference in subsection (9) to the Welsh Ministers is to the First
Minister or the Counsel General.
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(15)
In this section “action” includes making, confirming or approving subordinate
legislation and in subsection (2) also includes introducing into the Assembly a
proposed Assembly Measure or a Bill.
Functions: supplementary
82
Agency arrangements and provision of services
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(1)
Arrangements may be made between the Welsh Ministers and any relevant
authority for—
(a)
any functions of one of them to be exercised by the other,

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(b)
any functions of the Welsh Ministers to be exercised by members of
staff of the relevant authority,
(c)
any functions of the relevant authority to be exercised by members of
the staff of the Welsh Assembly Government, or
(d)
the provision of administrative, professional or technical services by
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one of them for the other.
(2)
Any arrangements under paragraph (a), (b) or (c) of subsection (1) for the
exercise of functions of the Welsh Ministers do not affect the responsibility of
the Welsh Ministers; and such arrangements for the exercise of any functions
of a relevant authority do not affect the responsibility of the relevant authority.
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(3)
The references in subsections (1) and (2) to functions do not include functions
of making, confirming or approving subordinate legislation contained in a
statutory instrument.
(4)
In this section “relevant authority” means any Minister of the Crown or
government department, any public authority (including any local authority)
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in England and Wales or the holder of any public office in England and Wales.
(5)
This section applies to the First Minister and the Counsel General as to the
Welsh Ministers.
83
Different exercise of functions by Welsh Ministers etc.
(1)
This section applies where—
20
(a)
an enactment confers or imposes a function exercisable in relation to
England and Wales, and
(b)
the function is to any extent conferred or imposed on the Welsh
Ministers by the enactment or transferred to, or made exercisable by,
the Welsh Ministers by or by virtue of this Act.
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(2)
The enactment is to be taken to permit—
(a)
the exercise of the function by the Welsh Ministers whether or not it is
exercised otherwise than by the Welsh Ministers, and
(b)
the exercise of the function differently by the Welsh Ministers (on the
one hand) and otherwise than by the Welsh Ministers (on the other).
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(3)
The reference in subsection (1)(a) to a function exercisable in relation to
England and Wales includes a function exercisable in relation both to England
and Wales and to another country or territory or other countries or territories.
(4)
Subsection (2) is subject to—
(a)
the enactment by which the function is conferred or imposed on the
35
Welsh Ministers, or
(b)
any provision by or by virtue of which the function is transferred to, or
made exercisable by, the Welsh Ministers.
(5)
Subsection (2) does not limit any power to exercise a function in relation to
Wales whether or not it is exercised in relation to England, or to exercise a
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function differently in relation to Wales and England, where this section does
not apply.
(6)
In this section “enactment” includes a future enactment.
(7)
This section applies in relation to the First Minister and the Counsel General as
to the Welsh Ministers.
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