CLAUSE 3: Ordinary Elections
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.
under this clause are subject to the negative procedure.
CLAUSE 11: Power to make
provision about elections
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.
under this clause are subject to affirmative resolution of both
CLAUSE 12: Disqualification
from being an Assembly member
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
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
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
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
CLAUSE 23: Transfers
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
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
CLAUSE 26: Power to make
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.
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.
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
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
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
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.
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).
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.
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.
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.
(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
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.
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.
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
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
46. Orders under
this clause are to be subject to the negative procedure.