Office of Public Sector Information
SCHEDULE 11 continued
34 (1) This paragraph applies where—
(a) a function to make subordinate legislation was conferred or imposed on the Assembly constituted by the Government of Wales Act 1998 (c. 38) by a pre-commencement enactment (“the Welsh function”),
(b) the Welsh function has been transferred to the Welsh Ministers, the First Minister or the Counsel General by or by virtue of paragraph 30 or 31, and
(c) when the Welsh function was transferred, a Minister of the Crown had the same or substantially the same function exercisable in relation to England (“the corresponding function”).
(2) If, immediately after the transfer of the Welsh function, a provision of any of the descriptions specified in sub-paragraph (4)—
(a) applied to the exercise of the corresponding function by the Minister of the Crown, but
(b) did not apply to the exercise of the Welsh function by the Welsh Ministers, the First Minister or the Counsel General,
the provision applies to any exercise of the Welsh function by the Welsh Ministers, the First Minister or the Counsel General as if any reference in it to Parliament or either House of Parliament were a reference to the Assembly.
(3) If, immediately after the transfer of the Welsh function, a provision of any of the descriptions specified in sub-paragraph (4) applied to both—
(a) the exercise of the corresponding function by the Minister of the Crown, and
(b) the exercise of the Welsh function by the Welsh Ministers, the First Minister or the Counsel General,
the provision applies to any exercise of the Welsh function by the Welsh Ministers, the First Minister or the Counsel General as if any reference in it to Parliament or either House of Parliament were a reference both to the Assembly and to Parliament or either House of Parliament.
(4) The descriptions of provision referred to in sub-paragraphs (2) and (3) are—
(a) provision requiring any instrument made in the exercise of the function, or a draft of any such instrument, to be laid before Parliament or either House of Parliament,
(b) provision for the annulment or approval of any such instrument or draft by or in pursuance of a resolution of either House of Parliament or of both Houses, and
(c) provision prohibiting the making of any such instrument without such approval.
(5) If, immediately after the transfer of the Welsh function, a provision of either of the descriptions specified in sub-paragraph (7)—
(a) applied to the exercise of the corresponding function by the Minister of the Crown, but
(b) did not apply to the exercise of the Welsh function by the Welsh Ministers, the First Minister or the Counsel General,
an instrument made in any exercise of the Welsh function by the Welsh Ministers, the First Minister or the Counsel General is subject to the procedure in the Assembly specified by the standing orders.
(6) If, immediately after the transfer of the Welsh function, a provision of either of the descriptions specified in sub-paragraph (7) applied to both—
(a) the exercise of the corresponding function by the Minister of the Crown, and
(b) the exercise of the Welsh function by the Welsh Ministers, the First Minister or the Counsel General,
the instrument made in any exercise of the Welsh function by the Welsh Ministers, the First Minister or the Counsel General is subject to that provision and to the procedure in the Assembly specified by the standing orders.
(7) The descriptions of provision referred to in sub-paragraphs (5) and (6) are—
(a) provision for any instrument made in the exercise of the function to be a provisional order (that is, an order which requires to be confirmed by Act of Parliament), and
(b) provision requiring any order (within the meaning of the Statutory Orders (Special Procedure) Act 1945 (9 & 10 Geo. 6 c. 18)) made in the exercise of the function to be subject to special parliamentary procedure.
(8) In this paragraph—
“make” includes confirm or approve and related expressions are to be construed accordingly, and
“pre-commencement enactment” means an enactment contained in an Act passed or subordinate legislation made before the end of the initial period.
(9) This paragraph does not apply if the Welsh function was transferred as a result of the operation of paragraph 30(2)(b) (see paragraph 28 and section 59).
35 (1) This paragraph applies where—
(a) a function to make subordinate legislation was conferred or imposed on the Assembly constituted by the Government of Wales Act 1998 (c. 38) by a pre-commencement enactment,
(b) the function has been transferred to the Welsh Ministers, the First Minister or the Counsel General by or by virtue of paragraph 30 or 31, and
(c) when the function was transferred, no Minister of the Crown had the same or substantially the same function exercisable in relation to England.
(2) No procedure for scrutiny by the Assembly applies to any instrument made in the exercise of the function, or a draft of any such instrument, unless the function is specified in Table 1 or Table 2.
(3) No subordinate legislation is to be made by the Welsh Ministers, the First Minister or the Counsel General in the exercise of any function specified in Table 1 unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, the Assembly.
| Function | Description |
|---|---|
| Section 45B(1) of the Environmental Protection Act 1990 (c. 43). | Power to apply section 45A to Welsh waste collection authorities. |
| Section 45D of the School Standards and Framework Act 1998 (c. 31). | Power to repeal school funding provisions. |
| Section 8(3) of the Care Standards Act 2000 (c. 14). | Power to confer functions in relation to Part 2 services in Wales. |
| Section 72B(2) of that Act. | Power to amend list of persons reviewable by Commissioner. |
| Section 73(5A) of that Act. | Power to amend list of arrangements reviewable by Commissioner. |
| Section 76(4) of that Act. | Power to confer further functions on Commissioner. |
| Section 78(1A) of that Act. | Power to provide that person aged 18 or over is a child for the purposes of Part 5. |
| Section 78(6) of that Act. | Power to make provision about persons to whom Part 5 applies. |
| Paragraph 2 of Schedule 2 to that Act. | Power to make provision about the appointment etc. of Commissioner. |
| Section 68(1) of the Local Government Act 2000 (c. 22), if exercised to amend or repeal any enactment contained in an Act. | Power to confer functions on Public Services Ombudsman for Wales. |
| Section 68(3) of that Act, if exercised to amend or repeal any enactment contained in an Act. | Power to make provision relating to Ombudsman’s functions and expenses. |
| Section 70(1) of that Act. | Power to make provision about investigations by Ombudsman. |
| Section 3(4) of the Health (Wales) Act 2003 (c. 4). | Power to transfer functions of Wales Centre for Health to Welsh Minister. |
| Section 4(1) of that Act. | Power to establish Health Professions Wales (HPW). |
| Section 4(3) of that Act. | Power to provide for HPW to carry out Welsh Ministers' functions. |
| Section 5(8) of that Act. | Power to abolish HPW. |
| Section 83(2) of the Local Government Act 2003 (c. 26). | Power to make fire authorities in Wales major precepting authorities. |
| Section 92(2) of that Act. | Power to repeal section 24(3) of the Housing Act 1985 (c. 68). |
| Section 23(9) of the Anti-social Behaviour Act 2003 (c. 38). | Power to apply to Wales provisions about penalty notices in cases of truancy. |
| Section 75(1) of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43), if exercised to amend or repeal any part of the text of an Act. | Power to require prescribed persons to provide explanation of documents etc. |
| Section 96 of that Act, if exercised to amend or repeal any part of the text of an Act. | Power to confer additional functions in relation to Welsh local authority social services. |
| Section 101(1) of that Act, if exercised to amend or repeal any part of the text of an Act. | Power to require prescribed persons to provide explanation of documents etc. |
| Section 33(3)(a)(ii) of the Higher Education Act 2004 (c. 8). | Power to require institutions' plans to include provision relating to promotion of higher education. |
| Section 12(2) of the Public Audit (Wales) Act 2004 (c. 23). | Power to add to definition of “local government body in Wales”. |
| Section 39(1) of that Act, if exercised so as to include a declaration that a contravention is an offence. | Power to make provision about publication etc. of accounts. |
| Section 46(2) of that Act. | Power to apply sections 47 to 49 to other local government bodies. |
| Section 47(5) of that Act. | Power to shorten period within which body must publish information. |
| Section 62(1) of the Education Act 2005 (c. 18), if exercised to amend or repeal an enactment. | Power to change inspection framework for Wales. |
| Section 103(3) of that Act. | Power to repeal certain provisions in the Education Act 2002 (c. 32). |
| Section 124(1) of that Act, if exercised to amend or repeal an enactment. | Power to make consequential etc. provision. |
(4) A statutory instrument containing subordinate legislation made by the Welsh Ministers, the First Minister or the Counsel General in the exercise of any function specified in Table 2 is (unless a draft of the statutory instrument has been laid before, and approved by a resolution of, the Assembly) subject to annulment in pursuance of a resolution of the Assembly.
| Function | Description |
|---|---|
| Section 16BA(1), (2) and (3) of the National Health Service Act 1977 (c. 49). | Power to establish Local Health Boards. |
| Section 16BB(1) of that Act. | Power to direct Local Health Board to exercise functions. |
| Section 16BB(2) of that Act. | Power to direct Local Health Board to exercise functions. |
| Section 16BB(4) of that Act. | Power to direct Local Health Board about functions. |
| Section 16BC(2) and (3) of that Act. | Power to direct Local Health Board about functions. |
| Section 20A(2)(a) of that Act. | Power to rename Community Health Councils. |
| Section 20A(2)(b) of that Act. | Power to abolish etc. Community Health Councils. |
| Paragraph 6 of Schedule 5B to that Act. | Power to make provision about constitution of Local Health Boards. |
| Paragraph 9(3) of Schedule 5B to that Act. | Power to make provision about officers of Local Health Boards. |
| Paragraph 17 of Schedule 5B to that Act. | Power to make provision about reports etc. of Local Health Boards. |
| Paragraph 2 of Schedule 7A to that Act. | Power to make provision about Community Health Councils. |
| Paragraph 3 of Schedule 7A to that Act. | Power to make provision about access for Community Health Councils. |
| Paragraph 4 of Schedule 7A to that Act. | Power to provide for advisory body for Community Health Councils. |
| Section 79S(2) of the Children Act 1989 (c. 41). | Power to confer functions relating to child minding or day care. |
| Section 79T(2) of that Act. | Power to make provision about inspection of child minding and day care. |
| Section 16A(3) of the Environment Act 1995 (c. 25). | Power to alter composition of regional flood defence committees in Wales. |
| Paragraph 5(2) of Schedule 7 to the School Standards and Framework Act 1998 (c. 31). | Power to prescribe content and form of publication of proposals. |
| Paragraph 12(2)(d) of Schedule 7 to that Act. | Power to prescribe period within which objections to proposals may be made. |
| Paragraph 17(2) of Schedule 7 to that Act. | Power to make transitional exemption order relating to proposal for school to cease to be single sex. |
| Paragraph 13B(1) of Schedule 26 to that Act. | Power to prescribe period within which nursery inspection report must be made. |
| Section 73(5) of the Care Standards Act 2000 (c. 14). | Power to confer power on the Commissioner to require information. |
| Section 74(1) of that Act. | Power to provide for examination by Commissioner of particular cases. |
| Section 76(1) of that Act. | Power to confer power on Commissioner to assist children. |
| Paragraph 6(4) of Schedule 2 to that Act. | Power to specify the financial years of Commissioner. |
| Paragraph 8 of that Schedule. | Power to require Commissioner to make reports to Assembly. |
| Paragraph 17 of that Schedule. | Power to add Commissioner to the Superannuation Act 1972 (c. 11). |
| Section 77(4) of the Learning and Skills Act 2000 (c. 21). | Power to prescribe period within which report must be made. |
| Section 83(7) of that Act. | Power to make further provision about obligation to provide information. |
| Section 128(4)(b) and (c) of that Act. | Power about statement of proposed action. |
| Section 68(1) of the Local Government Act 2000 (c. 22), unless exercised to amend or repeal any enactment contained in an Act. | Power to confer functions on Public Services Ombudsman for Wales. |
| Section 68(3) of that Act, unless exercised to amend or repeal any enactment contained in an Act. | Power to make provision relating to Ombudsman’s functions and expenses. |
| Section 109(6)(b) of the Transport Act 2000 (c. 38). | Power to specify date by which deemed local transport plan to be replaced. |
| Section 24(4) and (5) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17). | Power relating to health and well-being strategies. |
| Section 102 of the Education Act 2002 (c. 32). | Power to specify period which is foundation stage. |
| Section 108(2)(a) of that Act. | Power to specify areas of learning in respect of foundation stage. |
| Section 139(1) of that Act. | Power to approve institutions to provide course of higher education etc. |
| Section 192 of that Act. | Power to prescribe content and manner of publication of proposals to secure regional provision. |
| Section 193 of that Act. | Power to make provision about proposals to secure regional provision. |
| Section 197 of that Act. | Power relating to partnership agreements and statements. |
| Section 198 of that Act. | Power relating to transition from primary to secondary school. |
| Section 207(4) of that Act. | Power relating to adjustments between local education authorities. |
| Section 3(3) of the Health (Wales) Act 2003 (c. 4). | Power to make provision about functions of Wales Centre for Health. |
| Section 4(4) of that Act. | Power to make provision for HPW to make arrangements about functions. |
| Section 4(7) of that Act. | Power to make provision about constitution of HPW. |
| Section 5(1) of that Act. | Power to permit HPW to charge for services. |
| Section 5(2) of that Act. | Power to transfer property etc. and personnel to HPW. |
| Section 5(7) of that Act. | Power to make provision about accounts and audit of HPW. |
| Section 5(9) of that Act. | Power to transfer property etc. and staff from HPW. |
| Paragraph 10 of Schedule 2 to that Act. | Power to make provision about Wales Centre for Health. |
| Paragraph 27 of Schedule 2 to that Act. | Power to make provision about accounts and audit of Centre. |
| Section 29(1) of the Waste and Emissions Trading Act 2003 (c. 33) | Power to require Welsh local authority to have waste management strategy. |
| Section 30(1) of that Act. | Power to require Welsh local authority to provide information about waste. |
| Section 75(1) of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43), unless exercised to amend or repeal any part of the text of an Act. | Power to require prescribed persons to provide explanation of documents etc. |
| Section 94(6) of that Act. | Power to require Welsh local authority to pay fee in relation to review of adoption and fostering functions. |
| Section 96 of that Act, unless exercised to amend or repeal any part of the text of an Act. | Power to confer additional functions in relation to Welsh local authority social services. |
| Section 101(1) of that Act, unless exercised to amend or repeal any part of the text of an Act. | Power to require prescribed persons to provide explanation of documents etc. |
| Section 62(4) of the Planning and Compulsory Purchase Act 2004 (c. 5). | Power to prescribe form and content of local development plan. |
| Section 63(3)(a) of that Act. | Power to prescribe persons to be included in community involvement scheme. |
| Section 63(7) of that Act. | Power to prescribe requirements in relation to that scheme and local development plan. |
| Section 69(1) of that Act. | Power to prescribe times for review of local development plan. |
| Section 69(3) of that Act. | Power to prescribe form of, and publication requirements for, review. |
| Section 76(2) of that Act. | Power to prescribe information to be contained in annual monitoring report. |
| Section 76(3) of that Act. | Power to prescribe timing, form and content of report. |
| Section 77 of that Act. | Power to make provision about functions conferred by Part 6. |
| Section 30(1)(b) of the Higher Education Act 2004 (c. 8). | Power to designate “relevant authority”. |
| Section 38(2) of that Act. | Power to prescribe maximum period during which relevant authority can refuse to approve institution’s new plan. |
| Section 18(2)(c) of the Public Audit (Wales) Act 2004 (c. 23). | Power to specify documents to which right of access applies. |
| Section 21(1) of that Act. | Power to replace scale of audit fees. |
| Section 39(1) of that Act, unless exercised so as to include a declaration that a contravention is an offence. | Power to make provision about publication etc. of accounts. |
| Section 52(2)(c) of that Act. | Power to specify documents to which right of access applies. |
| Section 26(2)(f) of the Children Act 2004 (c. 31). | Power to make provision about implementation of children and young people’s plans. |
| Section 26(4) of that Act. | Power to require approval of such plans. |
| Section 22(1) of the Education Act 2005 (c. 18). | Power to establish panel to advise on Chief Inspector’s functions. |
| Section 25(2) of that Act. | Power to prescribe categories of persons who may be registered inspectors. |
| Section 25(3)(b) of that Act. | Power to prescribe fees for applications for registration. |
| Section 36(2) of that Act. | Power to make provision as to timing of inspections and reports. |
| Section 38(3)(e) and (4)(b) and (c) of that Act. | Power to make provision relating to destination of reports about maintained schools. |
| Section 39(2)(a), (3), (5) and (7)(b) of that Act. | Power to make provision relating to statement prepared by appropriate authority for school. |
| Section 40(3)(a) of that Act. | Power to make provision relating to statement prepared by local education authority. |
| Section 41(4)(b) and (c) of that Act. | Power to make provision relating to destination of reports about non-maintained schools. |
| Section 42(2)(a), (3), (4) and (5)(b) of that Act. | Power to make provision relating to statement prepared by proprietor of school. |
| Section 52(5) of that Act. | Power to make provision about provision of inspection services by LEAs. |
| Section 55(4) of that Act. | Power to prescribe intervals at which careers services are inspected. |
| Section 56(3) of that Act. | Power to prescribe intervals at which related services are inspected. |
| Section 57(7)(a), (b) and (c) of that Act. | Power to require a person inspected to prepare written statement in response. |
| Section 57(9) of that Act. | Power to make provision about inspection reports. |
| Section 62(1) of that Act, unless exercised to amend or repeal an enactment. | Power to change inspection framework for Wales. |
| Section 85(3)(d) of that Act. | Power to designate institutions eligible for HEFCW funding. |
| Section 90(1) of that Act. | Power to confer functions on HEFCW. |
| Section 91(1) of that Act. | Power to give directions to HEFCW. |
| Section 92(4) of that Act. | Power to authorise joint exercise of HEFCW functions. |
| Section 100(2) of that Act. | Power to make provision as to meaning of “governing body”. |
| Section 124(1) of that Act, unless exercised to amend or repeal an enactment. | Power to make consequential etc. provision. |
| Paragraph 2 of Schedule 3 to that Act. | Power to make provision about appeals to, and procedure of, tribunals. |
| Paragraph 3(2)(b) of Schedule 4 to that Act. | Power to prescribe persons who may not be members of inspection team. |
| Paragraph 4(3) of Schedule 4 to that Act. | Power to waive fees for applications to be on the list of inspection team members. |
| Paragraph 6(b) of Schedule 4 to that Act. | Power to make provisions about meetings between inspectors and pupils. |
(5) In this paragraph—
“make” includes confirm or approve and related expressions are to be construed accordingly, and
“pre-commencement enactment” means an enactment contained in an Act passed or subordinate legislation made before the end of the initial period.
(6) This paragraph does not apply if the function was transferred as a result of the operation of paragraph 30(2)(b) (see paragraph 28 and section 59).
36 (1) This paragraph applies where—
(a) a function to make or receive a report or statement was transferred to, or made exercisable by, the Assembly constituted by the Government of Wales Act 1998 (c. 38) by an Order in Council under section 22 of that Act,
(b) the function has been transferred to, or made exercisable by, the Welsh Ministers, the First Minister, the Counsel General or the Assembly Commission by or by virtue of paragraph 30 or 31, and
(c) immediately before the transfer of the function to that Assembly, any enactment made provision (“provision for Parliamentary laying”) for a report or statement made or received in the exercise of the function to be laid before Parliament or either House of Parliament by the person making or receiving it.
(2) The provision for Parliamentary laying applies to the exercise of the function by the Welsh Ministers, the First Minister, the Counsel General or the Assembly Commission as if it required the report or statement to be laid before the Assembly instead of before Parliament or either House of Parliament.
(3) In this paragraph and paragraph 37 references to a report or statement include any other document (except one containing subordinate legislation).
37 (1) This paragraph applies where—
(a) a function to make or receive a report or statement was conferred or imposed on the Assembly constituted by the Government of Wales Act 1998 by a pre-commencement enactment,
(b) the function has been transferred to the Welsh Ministers, the First Minister, the Counsel General or the Assembly Commission by or by virtue of paragraph 30 or 31, and
(c) immediately before the transfer, any enactment made provision for a report or statement made or received in the exercise of the function (or the matter contained in such a report or statement) to be published by that Assembly.
(2) A copy of the report or statement must be laid before the Assembly after it has been made or received.
(3) In this paragraph “pre-commencement enactment” means an enactment contained in an Act passed or subordinate legislation made before the end of the initial period.
38 (1) In paragraphs 39 and 40 “transferred function” means a function—
(a) which is conferred or imposed on the Welsh Ministers, the First Minister or the Counsel General by a provision of this Act which re-enacts (with or without modifications) a provision of the Government of Wales Act 1998 (c. 38) which conferred or imposed the same or substantially the same function on the Assembly constituted by that Act,
(b) which is transferred to a person or body other than the Assembly by or by virtue of paragraph 30 or 31, or
(c) which is conferred or imposed on the Welsh Ministers, the First Minister or the Counsel General by a provision of any Act in consequence of the amendment of that Act by or under this Act.
(2) In paragraphs 39 and 40 “the transferee”, in relation to a transferred function, means—
(a) in the case of a function within paragraph (a) or (c) of sub-paragraph (1), the person or body on whom the function is conferred or imposed, and
(b) in the case of a function within paragraph (b) of that sub-paragraph, the person or body to whom the function is transferred.
(3) In paragraph 39 “transfer time”, in relation to a transferred function, means the time when the function first becomes exercisable by the transferee of the transferred function.
39 (1) The property, rights and liabilities to which the Assembly constituted by the Government of Wales Act 1998 is entitled or subject in connection with any transferred function are transferred to and vest in the transferee of the function.
(2) Anything (including legal proceedings) which relates to—
(a) any transferred function, or
(b) any property, rights or liabilities transferred by sub-paragraph (1) in connection with any transferred function,
and which is in the process of being done by or in relation to the Assembly constituted by the Government of Wales Act 1998 immediately before the transfer time may be continued by or in relation to the transferee of the transferred function.
(3) Anything which was done by or in relation to the Assembly constituted by the Government of Wales Act 1998 for the purpose of or in connection with—
(a) any transferred function, or
(b) any property, rights or liabilities transferred by sub-paragraph (1) in connection with any transferred function,
and which is in effect immediately before the transfer time has effect as if done by or in relation to the transferee of the transferred function.
(4) In any instruments, contracts or legal proceedings which relate to—
(a) any transferred function, or
(b) any property, rights or liabilities transferred by sub-paragraph (1) in connection with any transferred function,
and which are made or commenced before the transfer time, the transferee of the transferred function is substituted for the Assembly constituted by the Government of Wales Act 1998.
40 (1) Her Majesty may by Order in Council provide that all or any of the provisions of paragraph 39—
(a) do not apply in relation to particular transferred functions or to the property, rights and liabilities connected with the particular transferred functions or particular property, rights and liabilities so connected,
(b) are to apply only in relation to particular transferred functions or to particular property, rights or liabilities connected with transferred functions, or
(c) apply with modifications in relation to particular transferred functions or to the property, rights and liabilities connected with the particular transferred functions or particular property, rights and liabilities so connected.
(2) Paragraph 39 does not apply in relation to rights and liabilities under a contract of employment of a member of the staff of the Assembly constituted by the Government of Wales Act 1998 (c. 38).
(3) No recommendation is to be made to Her Majesty in Council to make an Order in Council under this paragraph unless a draft of the statutory instrument containing the Order in Council has been laid before and approved by a resolution of—
(a) each House of Parliament, and
(b) the Assembly constituted by the Government of Wales Act 1998 or the Assembly constituted by this Act.
Government of Wales Act 2006