2006 Chapter 32

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These Notes refer to the Government of Wales Act 2006 (c. 32) which received Royal Assent on 25 July 2006

GOVERNMENT OF WALES ACT 2006

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Government of Wales Act 2006, which received Royal Assent on 25 July 2006. They have been prepared by the Wales Office in order to assist the reader in understanding the Act. They do not form part of the Act, and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not intended to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND

The Government of Wales Act 1998

3.     In July 1997 the Government published a White Paper, "A Voice for Wales" (Cm 3718), setting out its proposals for the creation of a Welsh Assembly. Following endorsement of those proposals in a referendum held on 18 September 1997, a Government of Wales Bill was introduced into the House of Commons in December 1997. The Bill as amended received Royal Assent in July 1998.

4.     The Government of Wales Act 1998 ("GoWA") provides for the establishment of a National Assembly for Wales consisting of 60 Assembly Members (AMs). 40 AMs are elected on a first past the post basis from constituencies identical with Parliamentary constituencies and a further 20 AMs are elected from five electoral regions, four from each region ¹. These additional AMs are drawn from party regional lists ², and seats are allocated having regard both to the votes given for each party's list in a region and the number of constituency seats which the party has secured in that region; the effect is to provide compensation, in the form of regional seats, for parties which secure a significant number of votes across an electoral region without obtaining an equivalent proportion of the constituency seats in that region ³. The first elections to the National Assembly were held in May 1999.

¹ In the event that a review of Parliamentary constituency boundaries in Wales resulted in an increase in the number of constituencies, provisions in Schedule 1 to the Act allow for an increase in the number of regional Members in order to maintain the overall 2:1 ratio.

² The Act allows an individual to stand for election for an electoral region, but in practice no individual candidates were elected from an electoral region in either 1999 or 2003.

³ The results of the elections in 1999 and 2003 are set out in the Table below:

	1999		2003
	Constituency seats won	Regional seats won	Constituency seats won	Regional seats won
Labour Party	27	1	30	0
Plaid Cymru	9	8	5	7
Conservatives	1	8	1	10
Lib Democrats	3	3	3	3
Other	0	0	1	0
	40	20	40	20

5.     Unlike the devolution arrangements put in place at the same time in Scotland and Northern Ireland, GoWA does not provide for a separation of the legislature from the executive. By section 1, the National Assembly is established as a corporate body, which exercises its functions on behalf of the Crown. The Government's policy, as set out in "A Voice for Wales", was that the Assembly should assume the statutory powers and duties which the Secretary of State for Wales had hitherto exercised. Provision was made for Orders in Council to transfer these predominantly executive responsibilities to the Assembly ⁴ and subsequent Acts of Parliament have conferred additional powers on the Assembly. The Assembly's powers, whether transferred by Orders in Council or conferred directly by Act of Parliament, include a large number of subordinate order-making powers (including some powers enabling the Assembly to amend primary legislation), but the Assembly is not empowered by GoWA to make primary legislation for Wales; this remains Parliament's responsibility.

⁴ GoWA, ss. 22-26. See eg National Assembly for Wales (Transfer of Functions) Order, SI 672 of 1999, which came into force on 1 July 1999.

6.     Although its statutory functions are in law made the responsibility of the Assembly as a corporate body, in practice most of the Assembly's powers (excluding those of a predominantly legislative character) are exercised on its behalf by Assembly Ministers ⁵ under delegation arrangements approved by the Assembly in plenary session ⁶. The Assembly holds Ministers to account for exercise of these functions, and, under standing orders, has the function of approving the Assembly's Budget. Financial provision for the Assembly is made available to it by the Secretary of State for Wales, out of moneys voted by Parliament ⁷.

⁵ GoWA , s.53, refers to an Assembly First Secretary and Assembly Secretaries, but in practice the holders of these offices are referred to as Ministers.

⁶ GoWA, s.62, makes provision for delegation of the Assembly's functions to the First Secretary and subsequently to other Assembly Secretaries.

⁷ GoWA, ss. 80-81.

The Act in Operation

7.     In February 2002, in debating its Review of Procedure, the Assembly unanimously approved a motion calling for "the clearest possible separation between the Government and the Assembly which is achievable under current legislation". Since March 2002, those (Ministers and civil servants) exercising executive powers on behalf of the Assembly have used the title "Welsh Assembly Government" to distinguish themselves from the wider Assembly, and the Assembly's support service has adopted the title "Assembly Parliamentary Service".

8.     In July 2002 the Welsh Assembly Government appointed a Commission, under the chairmanship of Lord Richard of Ammanford, to review the operation of the devolution arrangements ⁸.

⁸ The Report of the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales ("the Richard Report") was published in March 2004.

9.      Having analysed the consequences for development and implementation of distinctive policies for Wales of the Assembly's limited legislative powers, the Richard Report recommended that the Assembly should be able to make primary legislation for Wales (although Parliament would continue to have important legislative responsibilities for Wales as well).

10.      The Commission therefore concluded, in the light of both this and of its analysis of the implications of the Assembly's corporate body status, that the status quo was not a sustainable basis for the future development of the Assembly. It recommended that the existing Assembly should be "replaced by two separate bodies - an executive and a legislature".

11.      On 6 October 2004, the Assembly adopted a resolution calling for early legislation to amend GoWA.

12.     In June 2005 the Secretary of State for Wales published a White Paper ⁹"Better Governance for Wales", setting out proposals for new legislation to:

⁹ Cm 6582

a)     effect a formal separation between the executive and the legislative branches of the Assembly;

b)     reform existing electoral arrangements;

c)     enhance the legislative powers of the Assembly.

Formal separation between the executive and legislative arms of the Assembly

13.      Under the proposals:

a)     the Welsh Assembly Government would be established as an entity separate from, but accountable to, the National Assembly. The First Minister would be appointed by Her Majesty on the nomination of the Assembly, and the First Minister would appoint other Ministers and Deputy Ministers with Her approval. All these Ministers would act on behalf of the Crown, rather than as delegates of the Assembly as now (but would have to resign if they lost the confidence of the Assembly). A new statutory office of Counsel General would be created, the post holder being responsible for providing legal advice to the Assembly Government on matters relating to their devolved functions. Ministers would, as now, be supported by staff who would be civil servants;

b)     most of the statutory functions which currently are exercised in the name of the Assembly would formally become the responsibility of Assembly Ministers. The Assembly's current order-making powers would in future generally be exercised by Ministers, although procedures would be in place either for drafts of orders to be approved by the Assembly before they are made (affirmative procedure) or for orders to be annulled after having been made (negative procedure). Ministers would also be subject to duties relating to sustainable development and promotion of equality of opportunity which GoWA currently places on the Assembly as a whole;

c)     Ministers would be accountable to the Assembly for the exercise of their powers, and for the use made of the budgetary resources voted each year by the Assembly out of a new Welsh Consolidated Fund (into which the Secretary of State would make payments out of moneys voted by Parliament. The requirement for Ministers to be members of the Assembly's subject committees would end, and the Assembly would in general have more freedom to determine its own "internal architecture" of committees. The Assembly rather than Ministers would be authorised to advise Her Majesty on appointments to the offices of the Auditor General for Wales and the Public Services Ombudsman for Wales.

Enhanced legislative powers for the Assembly

14.      The White Paper proposed increasing the Assembly's legislative powers in three ways:

a)     as a first stage, by conferring wider powers on the Assembly to make subordinate legislation. The White Paper noted that this proposal would not require legislative amendment (and so there is no provision relating to this in the Government of Wales Act 2006). The first example of a "framework" provision of this kind is contained in the NHS Redress Bill, which was introduced in the House of Lords on 12 October 2005;

b)     secondly, by providing an Order in Council mechanism which would allow Parliament to confer enhanced legislative powers on the Assembly in relation to specified subject matter within devolved fields (i.e. fields in which the Assembly Ministers have or are about to obtain executive functions). The Order in Council would enable the Assembly to pass its own legislation within the scope of the powers delegated by Parliament (as defined by the Order in Council);

c)     thirdly, and following a referendum, by authorising the Assembly to make law on all the matters within its devolved fields of competence without further recourse to Parliament. A referendum could only be triggered with the approval of both Houses of Parliament and of two-thirds of all Assembly members. In the event of a vote in favour of "primary legislative powers", Parliament would nonetheless continue to be able to legislate for Wales, and the White Paper mentioned the possible need in this circumstance to develop procedures akin to the Sewel motions to regulate the relationship between the Westminster and Holyrood Parliaments.

15.     The White Paper stated that the new (first stage) approach to the drafting of power-conferring clauses could begin immediately ¹⁰. If Parliament approved the proposals, the (second stage) Order in Council mechanism could be in place from immediately after the next Assembly elections in 2007. The third stage in the process could however only be introduced following endorsement of that proposal in a referendum. The White Paper noted that the Government had no current plans to hold such a referendum, but the Bill implementing its proposals should nevertheless provide the powers for one to be held, so as to avoid the need to have to return to Parliament to secure the necessary legislation if it was ever decided to hold one at some future time.

¹⁰ See as the first example of this approach, NHS Redress Bill 2005, clause17.

Reforming the Assembly's electoral arrangements

16.     The White Paper contained three proposals relating to this:

a)     individuals should henceforth no longer be able to be candidates in constituency elections and at the same time be eligible for election as regional members from party lists.

b)     while there should be no change to the requirement that Assemblies are elected for fixed four-year terms, new provision (equivalent to that made for the Scottish Parliament) should be made for extraordinary elections within a four-year term, to apply in those exceptional circumstances where it was clear that an Assembly as presently constituted could not perform its functions properly;

c)     the Assembly should have a new power to allow it to arrange for public information campaigns to promote participation in its elections.

The Act

17.      The Act , which contains 6 Parts, 166 sections and 12 Schedules, gives effect to the White Paper proposals. Its provisions are further described below. Many of these are re-enacted, with amendments, from GoWA.

TERRITORIAL EXTENT AND APPLICATION

18.      The Act's substantive provisions extend (with limited exceptions) to the whole of the United Kingdom although its practical application will be confined almost entirely to Wales. The provisions which do not extend to the whole of the United Kingdom are section 36(7) to (9), section 39 and section 40(2) and (3). These provisions create criminal offences and extend only to England and Wales. Where the Act makes consequential amendments, these have the same extent as that of the statutes amended.

COMMENTARY ON SECTIONS AND SCHEDULES

General Overview of the Act

19.      The Act is organised in six Parts.

20.      Part 1, together with Schedules 1 and 2, makes provision for the election and remuneration of Assembly Members; for the offices of Presiding Officer, Deputy Presiding Officer, and Clerk; for the establishment of an Assembly Commission (to be responsible for providing the Assembly with staff and support services); for committees; and for the Assembly's powers to summon witnesses and call for documents.

21.      Part 2, with Schedule 3, establishes the Welsh Assembly Government as an entity separate from, but accountable to, the National Assembly. It deals with the appointment and remuneration of the First Minister and other Ministers and Deputy Ministers; creates the office of Counsel-General to the Welsh Assembly Government and makes provision for appointment to it; and authorises the appointment of staff (who are civil servants) in support of the Assembly Government. It provides for the exercise of statutory functions by Ministers in their own right (rather than as delegates of the Assembly), and places duties on them in respect of carrying out regulatory impact assessments in connection with Welsh subordinate legislation, and duties in respect of equality of opportunity, sustainable development and the Welsh Language. Ministers will also be required to engage with stakeholders through consultation mechanisms with business, local government, and the voluntary sector.

22.      Part 3, with Schedule 5, introduces the new mechanism, proposed in the White Paper ¹¹, by which legislative competence will be conferred on the Assembly, with Parliament's approval, in respect of specified matters set out in the Schedule as amended by Orders in Council. The Assembly's legislation in exercise of these powers will be known as Assembly Measures.

¹¹ "Better Governance for Wales", paras. 3.14-3.21.

23.      Part 4 and Schedules 6 and 7 make provision for the holding of a referendum on whether the Assembly should have more extensive ("primary") legislative powers, and specify the subject-matter on which the Assembly would be able to legislate without further recourse to Parliament if such a proposal was approved in a referendum. Provision is made in the Act for the subject-matter on which the Assembly could legislate, following approval in a referendum, to be adjusted and updated to reflect the circumstances of the time when any referendum is held.

24.      Part 5, with Schedule 8, deals with Finance. It provides for the creation of a Welsh Consolidated Fund, which will receive payments from the Secretary of State out of moneys voted by Parliament. Payments out of the Fund to meet the costs of Welsh Assembly Government programmes, will be authorised by Annual and Supplementary Budget Motions adopted by the Assembly. No payment out will be made unless approved by the Auditor General for Wales, who will need to be satisfied that it is in line with a Budget Resolution (or otherwise lawful under the Act ). Provision is made for preparation of the accounts of the Welsh Ministers, and of the Assembly Commission, and the Act appoints Accounting Officers to have personal responsibility for these accounts. Schedule 8 re-enacts with modifications the existing provisions relating to the office of the Auditor General for Wales; in particular, appointments to that office will in future be made by Her Majesty on the nomination of the Assembly.

25.      Finally, Part 6, with Schedules 9-12, deals with Miscellaneous and Supplementary matters. The provisions in the 1998 Act dealing with Welsh public records are re-enacted to reflect the new circumstances created by this Act. Provision is also made for legal proceedings in relation to "Devolution Issues". Schedule 11 contains transitional provisions to cover the transfer in May 2007 (when the next Assembly elections take place) from the legal and governmental regime created by the 1998 Act to that envisaged by this Act .

PART 1: NATIONAL ASSEMBLY FOR WALES

Overview of Part 1

26.      Part 1 of the Act re-enacts many of the 1998 Act's provisions relating to the establishment of the Assembly, but additional provision is made, in part because the Assembly will no longer be a "corporate body".

27.      By virtue of sections 1 and 2, 40 constituency members will continue to be directly elected from constituencies identical with Parliamentary constituencies, and 20 Assembly regional members from Assembly electoral regions. (Schedule 1 effectively re-enacts provision in the 1998 Act for the areas of those regions to be adjusted to reflect changes from time to time in Assembly/Parliamentary constituency boundaries so that electoral regions will always consist of a number of whole constituencies; and for additional regional members to maintain the 2:1 ratio if there is an increase in the number of Assembly constituencies). Under the 1998 Act, Welsh general elections to the Assembly are held every four years, and that continues generally to be the case under the new Act ; but new provision, equivalent to s.3 of the Scotland Act 1998, is made by section 5 of the Act to allow for an extraordinary (early) Welsh general election to be held if not less than two-thirds of all Assembly Members (i.e. 40) vote for a resolution to that effect. Such circumstances might arise if, for example, it became clear that, given the existing composition of the Assembly, no Assembly Government could be formed that would be likely to enjoy the confidence of the Assembly.

28.      Provisions on the entitlement to vote, and the voting arrangements, whereby electors are able to vote for a constituency candidate and separately for a party list (or independent candidate) at regional level, are carried forward from the 1998 Act. Assembly elections will be held in accordance with an order to be made by the Secretary of State under section 13 (and new provision will be made for the 2007 Welsh general election, taking into account the provisions of the Electoral Administration Act 2006). On candidacy, section 7 includes the provision so that a person may not appear on a party list as a candidate for a regional seat if that individual is also an Assembly constituency candidate. Provisions on the allocation of regional seats at a general election, and the filling of casual constituency or regional vacancies, are carried forward from the 1998 Act. Provisions relating to the disqualification from Assembly membership of the holders of specified offices are also carried forward, with amendments to reflect changes in legislation since 1998. On becoming Assembly Members, individuals are by section 23 required to take an oath or make an affirmation of allegiance, as was required by the 1998 Act.

29.      Arrangements for determining Assembly Members' remuneration are set out in sections 20-22, broadly in line with what was provided for in the 1998 Act. Section 22 provides for the publication of information about the salaries and allowances paid to individual Assembly Members. Provision is also made in section 24 for the Assembly to make payments by way of assistance to groups of Assembly Members to assist them to perform their functions; this is the Assembly equivalent of what is known in Parliament as "Short money". The Assembly's standing orders must make provision about the publication of information on the use made of this power in each financial year.

30.      Sections 25, 26 and 27 make provision respectively for the offices of Presiding Officer and Deputy Presiding Officer, the Clerk, and the establishment of an Assembly Commission to be responsible for providing the Assembly with staff and support services. The offices of Presiding Officer and Deputy Presiding Officer were created by the GoWA, but the Act sets out their responsibilities in fuller detail. Statutory recognition, by section 26, of the office of Clerk of the Assembly is new, and broadly follows s.20 of the Scotland Act 1998; by paragraph 17 of Schedule 11, the member of staff currently serving as Clerk to the Assembly will become the first holder of the office from the 2007 election.

31.      Provision for the Commission broadly follows that made in the Scotland Act 1998 for the Scottish Parliamentary Corporate Body. It is a consequence of the fact that the Assembly will no longer be a corporate body and will not therefore have the benefit of legal personality. The Commission, whose membership, duties and powers are set out in fuller detail in Schedule 2, will be a body corporate, capable of entering into contracts and holding property etc in its own right in pursuance of its functions. In recruiting staff, the Commission is to ensure that its procedures, including its selection procedures, and the terms of conditions of employment it offers, are to be broadly in line with those of the Welsh Assembly Government. Paragraphs 5 and 6 of Schedule 2 confer specific powers on the Assembly Commission to promote public awareness of the current or any pending system of Assembly elections, and of devolved government in Wales. ¹² The Commission is specifically empowered to provide financial assistance to the Electoral Commission for these purposes, but will also be able to take other such action as it thinks fit in pursuit of these objectives.

¹² See "Better Governance in Wales", para.4.8, for the background to this proposal.

32.      Sections 28-30 are about Assembly Committees. Generally speaking it will be for the Assembly in future to decide what committees it wishes to establish via its standing orders, but there is a requirement for an Audit Committee. Section 29 makes new provision for determining the membership of such committees as the Assembly may wish to establish after May 2007, so that (as far as reasonably practicable) the allocation of places on committees secures that the membership of each committee reflects the overall representation of political groups in the Assembly. It includes provision for determining the allocation of places in the event that there is not a consensus (that is, if there is no resolution to allocate committee places which is supported by two-thirds of those voting) and provision to secure that - subject to the total number of places available on committees - members who do not belong to a political group are each offered at least one place and all political groups are offered at least as many places as they have members, thus protecting the position of independent members and small political parties and groups.

33.      The Assembly's proceedings generally are to be regulated by its standing orders. By virtue of paragraph 20 of Schedule 11, the Secretary of State is to make standing orders to be in place when the Assembly first meets after the May 2007 elections. In making those standing orders, the Secretary of State must give effect (subject to a power to modify them to make them precisely fit for purpose) to any draft standing orders adopted by the Assembly on a two-thirds vote. After the Assembly is elected in 2007, it will be able to revise any provisions of its standing orders as it sees fit, subject, as now, to two-thirds of Members voting to support such revisions; but any such revisions will need to be compatible with the Act 's requirements that certain matters (e.g. integrity and the need for a register of interests, see section 36), are provided for in standing orders.

34.      Sections 32-34 of the Act provide variously for the Secretary of State for Wales to participate (but not to vote) in Assembly proceedings; for other Ministers of the Crown to participate, to the extent that is permitted by standing orders; and for the Counsel General, who need not necessarily be an Assembly Member, also to participate as standing orders allow. The Secretary of State for Wales' duty under s.31 of the GoWA to consult the Assembly on the UK Government's legislative programme is carried forward into the new Act as section 33. Assembly proceedings generally are, by virtue of section 35, to reflect equal opportunity principles and equal treatment of the Welsh and English languages. Statements in Assembly proceedings are absolutely privileged for the purposes of the law of defamation (section 42).

35.      Finally in this Part, sections 37- 40 make revised provision enabling the Assembly, or any of its committees, to summon witnesses or call for documents, "concerning any matter relevant to the exercise by the Welsh Ministers of any of their functions". Section 40 envisages that a witness giving evidence in such circumstances may be required to do so on oath (or affirmation). It will still be open to an Assembly committee to invite witnesses to give evidence on any matter in which the committee has an interest. There are exceptions to the power to compel attendance or the production of documents. For example, it will not be open to the Assembly to summon to give evidence someone who has been a Minister of the Crown, or has served as a civil servant in support of a Minister of the Crown, in relation to the exercise of any functions of a Minister of the Crown (section 37(3)). On the other hand, Welsh Ministers' officials will be summonable; although provision is made for a Welsh Minister to appear themselves, or to nominate a different official to represent them to the one summoned by the Assembly committee, if the Minister considers that appropriate in the particular circumstances (section 37(5),(6)).