Select Committee on Delegated Powers and Deregulation Eighteenth Report



  CLAUSE 3: Ordinary Elections

3.        Clause 3 provides for the timing of ordinary elections to the Assembly. Clause 3(1) enables the Secretary of State, by order, to set the date for the first ordinary elections to the Assembly. During Commons Committee stage, the Secretary of State for Wales announced the Government's intention that the first elections will take place on 6 May 1999. Clause 3(2) stipulates that subsequent elections will be held on the first Thursday in May in the fourth year following the previous election. However, clause 3(3) allows the Secretary of State, by order, to alter the date of an Assembly ordinary election so that it takes place within one month either side of the date on which it would otherwise take place; the purpose of this provision is to be able to avoid a clash with, for example, a day of thanksgiving or national mourning.

4.  Clause 3(4) allows the Secretary of State, by order, to postpone for up to 3 months elections for Community councillors if the date for such elections would otherwise be the same as that for an Assembly ordinary election. The first elections for the Assembly will take place on 6 May 1999, the date also for elections to unitary authorities and community councils in Wales. Clause 3(4) would, therefore, allow the Secretary of State to defer the date of elections for community councillors, possibly linking this to the date for European Parliamentary elections scheduled for June 1999. However, before any order is made under clause 3(3) and (4), the Secretary of State is required to consult the Assembly.

5.        Orders under this clause are subject to the negative procedure.

  CLAUSE 11: Power to make provision about elections

6.        Clause 11 empowers the Secretary of State to make provision relating to the holding of elections. Under clause 11(1), the Secretary of State is able to make provision governing the conduct of elections, the questioning of elections, the consequences of irregularities in the return of a member and the return of a member other than at an election.

7.        This order-making power is further elaborated by clause 11(2); orders may include provision about the registration of electors, disregarding alterations to the register of electors; limits on election expenses of individual candidates and registered political parties; for the combination of the Assembly elections with that for other elections; and for modifying the operation of Clause 4 (return of constituency and regional members) where a constituency election is countermanded or abandoned. Also, clause 11(3) enables the Secretary of State to apply, with modification or exceptions, the Representation of the People Acts or the European Parliamentary Elections Act 1978, or other Acts relating to Parliamentary, European Parliamentary or local government elections; to amend forms made in connection with the Representation of the People Acts so as to enable such forms to be used in elections for the Assembly; and, to amend any legislation, relating to the register of electors for Parliamentary or local government elections.

8.        Orders under this clause are subject to affirmative resolution of both Houses.

  CLAUSE 12: Disqualification from being an Assembly member

9.        Clause 12 prescribes circumstances which disqualify individuals from membership of the Assembly subject to clause 13 which contains exceptions. The general disqualification provisions of the House of Commons Disqualification Act 1975 apply to membership of the Assembly. However, under clause 12(1), an Order in Council can designate other offices which would also disqualify from membership of the Assembly. The Auditor General for Wales and an individual disqualified from membership of a local authority on specified grounds are also ineligible for membership of the Assembly.

10.      Under subsection(5), any Order in Council must be approved in draft by both Houses but under subsection (6) this does not apply if the Order is varying or revoking a previous Order and the Secretary of State has been asked by the Assembly to recommend the making of the Order.

  CLAUSE 15: Judicial proceedings as to disqualification from membership

11.      Clause 15 provides for legal proceedings to determine whether a person is disqualified as a member of the Assembly. Application is to be made to the High Court for a declaration to such effect. Under clause 15(4), an applicant has to provide security for the cost of the proceedings. Clause 15(5) stipulates that the security is not to exceed £5,000 or such other amount as may be specified by order made by the Secretary of State. Such an order is subject to the negative procedure.

  CLAUSE 17: Limit on salaries of members of other public bodies

12.      Clause 17 allows the Secretary of State by order to reduce the remuneration payable to a member of the Assembly who is also a member of either House of Parliament, the European Parliament or any other public body specified in the order. Remuneration includes salary and any allowance specified by order made by the Secretary of State (subsection (2)).

13.      The order making power is in clause 17(1). However, under clause 17(4) and (5), an order may make different provision for those Assembly members who receive a different salary level and may apply to an individual member or description of member either indefinitely or for a specified period, either unconditionally or subject to conditions. Orders under this clause are subject to the negative procedure.

  CLAUSE 22: Transfer of Ministerial functions

14.      Clause 22 provides the mechanism whereby functions of Ministers of the Crown may be transferred to the Assembly by Order in Council. The Order may direct that functions are to exercisable concurrently with a Minister, or that functions which are exercisable by a Minister are to be exercisable only with the agreement of, or after consultation with the Assembly (subsection (1)). Orders may be submitted to Her Majesty only if they have first been approved by resolutions in both Houses of Parliament, and also, where they vary or revoke previous such Orders, by a resolution of the Assembly (subsection (4)). Before the first elections to the Assembly, the Secretary of State must, in each of the fields specified in Schedule 2, seek such an Order for such functions in that field which he considers appropriate (subsection (2)).

15.      A first working draft of a Transfer of Functions Order was issued on 16 January. It is the intention to prepare an up-dated draft to coincide with the start of the Committee stage in the House of Lords.

16.Clause 45 provides that Parliamentary procedures will not apply to subordinate legislation made by the Assembly under powers conferred by an Order in Council under clause 22. Exceptions to this include: instruments made jointly by the Assembly and a Minister of the Crown; made by the Assembly in respect of Wales and by a Minister of the Crown in respect of England (or another country); in respect of cross-border issues; or, in relation to special parliamentary procedures, where the Order in Council provides for that parliamentary procedure to apply.

  CLAUSE 23: Transfers - supplementary

17.      Clause 23 makes a number of further provisions regarding the transfer of powers of Ministers to the Assembly under clause 22. It provides that the transfer, by order, of functions to the Assembly will free it from any requirement of agreement or consultation with another Minister. But Ministers retain powers with respect to Wales where necessary for the purpose of European obligations. An Order under clause 22 may not transfer functions except in the specific provisions listed in paragraphs (a)-(c) in subsection (3).

18.      Functions relating to the Welsh Language, the sea adjoining Wales, cross border areas and cross border bodies are to be regarded as exercisable in respect of Wales and thus capable of transfer although the definition of Wales does not include anything extending beyond the Welsh local government areas (subsections (6) - (8)).

19.      The clause also provides that, in certain circumstances, the Assembly may acquire powers under clause 22 over areas other than the land area of Wales.

  CLAUSE 24: General transfer of property, rights and liabilities etc.

20.      Clause 24 provides for the Assembly to acquire property, rights and liabilities in connection with functions transferred to it under clause 22. It also provides for the Assembly to continue any activity, including legal proceedings, in connection with such a function, begun by a Minister before that function was transferred, and states that any such activity shall be treated as if done at all stages by the Assembly. To this end, it provides that the Assembly shall be substituted for the relevant Minister in any legal documents or proceedings made or commenced before the relevant function is transferred.

  CLAUSE 25: General transfer - supplementary

21.      Clause 25 allows for an order under clause 22 to provide for the non-application of any or all of the provisions of clause 24 in respect of any function transferred under it to the Assembly.

  CLAUSE 26: Power to make specific transfers

22.      Clause 26 gives the Secretary of State the power to transfer to the Assembly any property, rights and liabilities of a Minister. It is supplementary to the general transfer provisions of clause 24. Additionally, it provides that the Secretary of State may impose conditions on transfers of property, rights and liabilities under this clause, and that he may create rights and liabilities for the Assembly or a Minister in connection with such property. He may further make provisions to enable the Assembly to continue any activity done or begun by a Minister.

23.Clause 26(1) allows the Secretary of State to make an order transferring to the Assembly any specified property, rights or liabilities of a Minister, or property, rights and liabilities of a specified description. Clauses 26(2) and (3) allow the orders to provide for the transfer of property, rights and liabilities to the Assembly to have effect subject to exceptions to or reservations from that transfer and to create for a Minister rights over, or interests in, property which is to transfer to the Assembly by virtue of that order.

24.Clause 26(3) allows the order to create for the Assembly similar rights over and interests in property which is to rest with the Minister concerned, and for such an order to create new rights and liabilities between the Assembly and the Minister.

25.Clause 26(4) - (8) make further provision in respect of the order-making powers of this clause. The order may provide: for the Assembly to be able to continue any activity begun by or in relation to a Minister; any thing done by a Minister to have effect as if it were done by the Assembly; for the Assembly to be substituted for a Minister in any specified legal document or proceedings; and to include appropriate consequential or transitional provisions.

26.      Orders under this clause are subject to the negative procedure.

  CLAUSE 28: Reform of Welsh health authorities

27.      Clause 28 gives the Assembly powers to reform the structure of Health Authorities in Wales. The clause provides that the Assembly may, by order, transfer to itself some or all of the functions of a Health Authority or Special Health Authority in Wales for part or all of the area for which it is responsible. Where all of the functions of a Health Authority or Special Health Authority are transferred, the Assembly may abolish the Health Authority or Special Health Authority.

28.      The Order may also transfer staff, property, rights and liabilities of a Health Authority of Special Health Authority, and may make consequent provision.

29.Clause 28(10) provides that the clause does not limit any power conferred by the National Health Service Act 1977. This is to make clear that, for instance, powers in the 1977 Act to abolish Special Health Authorities which operate in England, or Wales and England, are unaffected.

30.      Subordinate legislation made by the Assembly is not generally to be subject to Parliamentary procedure: see clause 45.

  CLAUSE 29: Reform of other Welsh public bodies

31.      Clause 29 gives the Assembly powers to reform the structure of public bodies in Wales as listed in Parts I and II of schedule 3. The Assembly may, by order, transfer the functions of these bodies to another such body, to a Welsh local authority or to itself, and it may abolish such bodies where all their functions have been transferred. The clause also allows the Assembly to make further provisions by order in connection with the transfer of the functions of public bodies.

32.      An order under clause 29(1) may transfer functions either to a body listed in part I or III of schedule 3, or to a body listed in part II or IV if that body consents to the transfer. Orders under this subsection may also transfer the functions of public bodies to a local authority in Wales, or to the Assembly itself. Clause 29(2) permits the Assembly to abolish functions of public bodies in certain circumstances. Thus, if body B is under a duty to consult body A, and all of B's functions are transferred to A, the function of consultation may be abolished as A cannot reasonably consult itself.

33.      The order may, secondly, abolish functions which, if transferred to a body under subsection (1), would become redundant. Thus if both body C and body D have the power to acquire land compulsorily for their functions, and all of C's functions are transferred to D, C's power to acquire land may be abolished as it duplicates an existing power of body D.

34.Clause 29(3) allows the Assembly by order to abolish a body listed in part I of schedule 3, or to abolish the duty to recognise a body listed in part II of that schedule, where it transfers or abolishes all of the functions of that body under subsection (1) or (2).

35.      Clause 29(4) allows the order to transfer the staff, property, rights and liabilities of bodies which are the subject of orders under subsections (1) to (3). In doing so, the Assembly may specify the terms on which such a transfer may occur, and create interests or rights in property so transferred or between the bodies concerned. The Assembly may make orders under this clause regardless of any provision of any nature which would constrain or prevent the transfers concerned, and may make orders in respect of property situated outside the UK, and rights and interests created under legal systems outside England and Wales.

36.Clause 29(5) allows the order to amend the membership of a body where it makes orders under this clause to abolish any of its functions, or to transfer functions to or from it. The Assembly can use this power in respect of a body in part I or III of schedule 3. Clause 29(6) provides that, where a body is abolished under subsection (3), the Assembly may also by order abolish any duty which originally required the establishment of that body. Clause 29(7) allows the Assembly to include in orders under this clause any provisions which seem to it to be appropriate in consequence of the transfer of the functions of public bodies by it. Such provisions may repeal, or make amendments to, existing enactments.

37.      Subordinate legislation made by the Assembly is not generally to be subject to Parliamentary procedure: see clause 45.

  CLAUSE 30: Implementation of community law

38.      Clause 30 allows the Assembly to be designated under the European Communities Act to make regulations implementing Community law.

39.Clauses 108 (observing Community law and human rights) and 109 (Community obligations of the Assembly) contain provision in respect of the Assembly's obligations towards implementing the UK's international obligations.

40.      If by virtue of clause 30(1), the Assembly is designated under section 2(2) of the European Communities Act 1972, clause 30(2) allows the Assembly to make regulations under the 1972 Act for any purpose within the terms of that section. This power is, though, subject to any conditions which the Order in Council designating the Assembly may contain.

41.Clause 30(3) provides that any regulations made by the Assembly under section 2(2) of the 1972 Act are not to be subject to Parliamentary procedure, unless the statutory instrument containing them also contains regulations made by a Minister or a government department.

42.Clause 30(4) allows the Assembly, with the consent of the Treasury, to exercise the power in section 56 of the Finance Act 1973, and thus to set fees and charges payable for services provided pursuant to a Community obligation or other international agreements etc. Any regulations made by the Assembly under section 56 of the Finance Act 1973 are not to be subject to Parliamentary procedure, unless the statutory instrument containing them also contains regulations made by a Minister.

  CLAUSE 31: Consultation on public appointments

43.      Clause 31 allows duties to be imposed by Order in Council on Ministers or other persons to consult the Assembly about public appointments for which they are responsible. The appointments concerned are to be specified in the Order in Council. Only appointments to public bodies or offices which operate in or in relation to Wales may be included in Orders made under this clause. Clause 31(7) empowers the Order to include consequential etc. provisions, including the amendment or repeal of enactments. Clause 31(8) provides that statutory instruments containing Orders in Council made under this clause shall be subject to the affirmative procedure where they entail amendments to Acts. Clause 31(9) provides that statutory instruments not covered by subsection (8) shall be subject to the negative procedure.

  CLAUSE 37: Polls for ascertaining views of the public

44.      Clause 37 provides that the Assembly may hold a poll in the whole or a part of Wales to ascertain public views about the exercise of the Assembly's functions (excluding functions under clause 34). The Assembly may, by order, make provision as to the conduct of such polls. Such an order is not subject to Parliamentary procedure. Under clause 37(5), the Secretary of State may, by order, make provision to combine an Assembly poll with any elections. Such an order is subject to the negative procedure.



  CLAUSE 40: Contracts

45.      Clause 40 deals with certain contracts entered into by the Assembly. It enables the Secretary of State, by order, to apply the Local Government (Contracts) Act 1997, with appropriate modifications, to Assembly contracts.

46.      Orders under this clause are to be subject to the negative procedure.


 
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