Part 17 – Transitional provision relating to the Government of Wales Act 2006
199.Under the 2006 Act, the powers and functions of the Assembly, including the power to make subordinate legislation, were transferred to the Welsh Ministers, who became accountable to the Assembly.
200.The 2006 Act created a system for granting the Assembly the ability to pass Assembly Measures in 20 defined areas through Legislative Competence Orders, which required the consent of both Houses of Parliament and the Secretary of State for Wales.
201.It also granted the Assembly the power to make Acts, subject to a referendum. This referendum was held in 2011 and, following the affirmative referendum result, the Assembly assumed new powers to pass primary legislation (Acts of the National Assembly for Wales) without recourse to Parliament in specified areas.
202.The Wales Act 2014 transferred further powers to the National Assembly for Wales, and the subsequent Wales Act 2017 made further changes to the 2006 Act and the Wales Act 2014, notably moving from a “conferred” to a “reserved” model of devolution in Wales. On 6 May 2020 the National Assembly for Wales became “Senedd Cymru” or “the Welsh Parliament” following changes introduced by section 2 of the Senedd and Elections (Wales) Act 2020.
203.Over and above the amendments to the 2006 Act that have already been set out in these Explanatory Notes, Part 16 of this Schedule to the Act makes changes to Schedule 11 to the 2006 Act. Schedule 11 contains transitional provisions to cover the transfer in May 2007, when the first Assembly election took place after the 2006 Act, from the legal and governmental regime created by the 1998 Act to the regime set out in the 2006 Act. It sets out detailed provisions dealing with the arrangements necessary to ensure an effective transition. As the transition has happened a number of those provisions are no longer required, and the Act will remove these from the statute book.
204.The amendments to Schedule 11 are to:
Paragraphs 3 to 7 (dealing with elections) –
paragraph 3 provides for the date of the first meeting of the National Assembly returned after the 2007 election to be set by order made by the ‘old Assembly’ (which had been constituted under the 1998 Act). This is spent now that the first meeting after the 2007 election has taken place;
paragraph 4 provides for the date of the first ordinary Welsh general election held after 2007 to be calculated by reference to the 2007 election, which had the effect that the next general election would be held in 2011. This is spent now that the 2011 election has taken place;
paragraphs 5 and 6 are also spent because they amended sections 5 and 7 of the 1998 Act, which were both repealed by Schedule 12 to the 2006 Act;
paragraph 7 is spent because it modified section 11 of the 2006 Act until the first general election and related to Senedd by-elections before the 2011 election.
Paragraph 9, which made transitional provision about the term of office of Assembly Members returned at the 2007 election and is therefore now spent.
Paragraph 11 disqualifies a Lord of Appeal in Ordinary from being a member of the Senedd. Lords of Appeal in Ordinary, or Law Lords, were judges appointed under the now-repealed Appellate Jurisdiction Act 1876 to the Appellate Committee of the House of Lords. They exercised the House of Lords’ judicial functions, which included acting as the highest court of appeal for most domestic matters. The House of Lords lost its judicial functions on the establishment of the Supreme Court of the United Kingdom in October 2009. Lords of Appeal in Ordinary then in office automatically became judges of the Supreme Court of the United Kingdom(25). Section 16 of the 2006 Act (as amended by the Senedd and Elections (Wales) Act 2020) disqualifies the office holders set out in the table in Part 2 of Schedule 1A to the 2006 Act from being a Member of the Senedd and from being a candidate to be a Member of the Senedd. These include the holders of certain judicial offices including a Justice of the Supreme Court. Paragraph 11 is therefore no longer required.
Paragraphs 14 to 19 – these are spent provisions relating to arrangements following the 2007 general election to the National Assembly, and the ‘initial period’. That is, the period beginning at the start of polling day 2007 (when all members of the existing Assembly, including Assembly Ministers, would normally cease to be able to exercise those functions) and ending with the appointment of a First Minister.
Paragraph 14 ensured that the Assembly (constituted under the 2006 Act) was responsible for publication of information about remuneration of Assembly members in relation to the financial year 2006-07 (i.e. relating to the last year of the ‘old Assembly’ and its members).
Paragraph 15 ensured that a determination made under section 34A of the 1998 Act, which was in force immediately before the repeal of that section, continued to have effect in relation to the Assembly.
Paragraph 16 ensured that the holding of the 2007 election triggered the duty of the Assembly to elect a Presiding Officer and Deputy Presiding Officer.
Paragraph 17 ensured that the person who was the Clerk to the ‘old’ Assembly became the Clerk of the Assembly for the purpose of functions under the 2006 Act.
Paragraph 18 provided that paragraphs 5 and 6 of Schedule 2 (which authorise the Assembly Commission to promote awareness of the election system and devolved government either directly or by financial support for the Electoral Commission) have effect until the end of the initial period as if the reference to the Assembly Commission were a reference to the ‘old Assembly’.
Paragraph 19 ensured that, until the end of the initial period, if Her Majesty made an Order in Council under paragraph 12(1) of Schedule 2 providing for the Assembly Commission to be treated as a Crown body for the purposes of an enactment, the statutory instrument containing the Order may be annulled only by either House of Parliament.
Paragraphs 22 to 25, which ensured that governmental functions of the ‘old Assembly’ could continue to be exercised during the initial period. These are spent because they make provision about membership and functions of the Assembly constituted by the 1998 Act during “the initial period”, which ended on 25 May 2007.
Paragraph 28(1), which provided for the continuation of powers conferred upon the “old Assembly” to implement certain European legislation. This is no longer required because of the European Union (Withdrawal) Act 2018.
Paragraph 29, which refers to the first nomination of the First Minister in respect of the Assembly term following the holding of the poll at the 2007 election. This provision is now spent.
Paragraphs 35(3) and 35(4), which deal with procedures for making subordinate legislation and are amended to remove references to subordinate legislation-making powers that have been repealed.
Paragraphs 50 and 51, which deal with the process for making Legislative Competence Orders. The power to make Legislative Competence Orders has been repealed.
Paragraphs 53, 53A and 53B, which are spent provisions relating to payments into the Welsh Consolidated Fund.
Paragraphs 54, 55, 56, 58, 59, 62 and 63, which contain modifications that apply only to the end of the initial period, which ended on 27 May 2007.
Paragraphs 60 and 61, which modify provisions in their application for only the financial year beginning on 1 April 2007, so they are spent.
Paragraphs 64, 64B, 64C, 64F and 64G, provisions relating to the Auditor General and Public Services Ombudsman for Wales, which are time-limited and spent.
Paragraph 65 makes provision necessary for the period before the coming into force of section 27(1) the Justice (Northern Ireland) Act 2002. This is spent because section 27 of that Act came into force on 12 April 2010.
Paragraphs 66 and 67 make provision necessary for the period before the coming into force of section 23(1) of the Constitutional Reform Act 2005. These are spent because section 23(1) of that Act came into force on 1 October 2009.
205.The Act also repeals paragraph 10 of Schedule 3 to the National Health Service (Consequential Provisions) Act 2006 because it applied only during the initial period, within the meaning of the 2006 Act, which ended on 25 May 2007. The provision is spent as the initial period has ended.
206.In consequence of the amendments made to Table 2 in paragraph 35 of Schedule 11, the Act also repeals paragraph (c) of paragraph 22 of the Schedule to Learning and Skills (Wales) Measure 2009.
see section 24 of the Constitutional Reform Act 2005
