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DEVOLUTION TO SCOTLAND AND WALES


TO SHOW HOW DEVOLUTION IS BEING IMPLEMENTED IN LAW

The relevant Bills were introduced into Parliament late in 1997, and they emerged as the
Government of Wales Act 1998
and the
Scotland Act 1998.

NOTE: THE FULL TEXT OF THIS LEGISLATION IS AVAILABLE FROM

THE STATIONERY OFFICE WEBSITE


SCOTLAND ACT 1998

The Act very much follows the plans in the White Paper, but the following differences might be noted at the outset:

Part I of the Act deals with the Scottish Parliament

The Scottish Parliament consists of 129 MSPs - 73 elected by first past the post, 56 additional members from party lists for each of 8 European constituencies provided for by the European Parliamentary Constituencies (Scotland) Order 1996(s.1 and Sched.1). The electorate is defined in the same way as for local government elections.
 

1. - (1) There shall be a Scottish Parliament.

(2) One member of the Parliament shall be returned for each constituency (under the simple majority system) at an election held in the constituency. 

(3) Members of the Parliament for each region shall be returned at a general election under the additional member system of proportional representation provided for in this Part andvacancies among such members shall be filled in accordance with this Part... 

(5) Schedule 1 (which makes provision for the constituencies and regions for the purposes of this Act and the number of regional members) shall have effect.

Peers, ordained religious ministers and citizens of the EU are all eligible for election (s.15). It sits for fixed four years (s.2). The most important Parliamentary figure (in some ways equivalent to the Speaker) is the Presiding Officer (s.18). Matters of detailed procedure will be dealt with by Standing Orders. The Parliament makes Acts of the Scottish Parliament (s.27). But note the express saving for the powers of Westminster in s.27(7).
 

27. - (1) Subject to section 28, the Parliament may make laws, to be known as Acts of the Scottish Parliament. 

(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland _ Westminster can continue to legislate on any Scottish issue - supremacy in principle still resides in London.

Likewise, s.29 recognises that the Scottish Parliament does not have complete legislative competence, unlike the Westminster Parliament.
 

29. - (1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. 

(2) A provision is outside that competence so far as any of the following paragraphs apply- 

a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland, 

(b) it modifies an enactment in breach of the restrictions in Schedule 4, 

(c) it relates to reserved matters, 

(d) it is incompatible with any of the Convention rights or with Community law, or 

(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. 

(3) A provision is not outside that competence by reason of subsection (2)(c) merely because it makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters if the provision does so in such a way that the law in question applies consistently to devolved and reserved matters. 

(4) A provision is not outside that competence by reason of suection (2)(c) merely because it makes modifications of any enactment as it applies to reserved matters which are incidental to or consequential on provision made (whether by the Act in question or another enactment) for purposes relating to any devolved matters. 

(5) A provision does not relate to reserved matters merely because it makes provision for purposes relating to devolved matters which incidentally affects reserved matters unless it makes modifications of Scots private law or Scots criminal law, or of any enactment, as it applies to reserved matters. 

(6) A provision is not outside that competence merely because it provides for rights or liabilities to which the Parliament is entitled or subject to be treated for any purposes as rights or (as the case may be) liabilities of the Parliamentary corporation or the Scottish Ministers. 

(7) An Act of the Scottish Parliament may modify a provision made by or under an Act of Parliament, whenever passed or made, if the modification is otherwise within its legislative competence. 

(8) Any provision of an Act of the Scottish Parliament is to be read, so far as possible, so as to be within the legislative competence of the Parliament and is to have effect accordingly. 

(9) References in this section to modification of the law include re-enactment and codification.

"Reserved matters" (see above) are defined by Sched.5.
 

PART I: GENERAL RESERVATIONS 

The Constitution 

1. The following aspects of the constitution are reserved matters, that is- (a) the Crown, including succession to the Crown and a regency, (b) the Union of the Kingdoms of Scotland and England, (c) the Parliament of the United Kingdom, (d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal, (e) the continued existence of the Court of Session as a civil court of first instance and of appeal.

2. - (1) Paragraph 1 does not reserve- (a) Her Majesty's prerogative and other executive functions, or (b) functions exercisable by any person acting on behalf of the Crown. 

(2) Sub-paragraph (1) does not affect the reservation by paragraph 1 of honours and dignities or the functions of the Lord Lyon King of Arms so far as relating to the granting of arms; but this sub-paragraph does not apply to the Lord Lyon King of Arms in his judicial capacity.

(3) Sub-paragraph (1) does not affect the reservation by paragraph 1 of the management (in accordance with any enactment regulating the use of land) of the Crown Estate. 

3. - (1) Paragraph 1 does not reserve property belonging to Her Majesty in right of the Crown or belonging to any person acting on behalf of the Crown or held in trust for Her Majesty for the purposes of any person acting on behalf of the Crown. 

(2) Paragraph 1 does not reserve the ultimate superiority of the Crown or the superiority of the Prince and Steward of Scotland. 

3) Sub-paragraph (1) does not affect the reservation by paragraph 1 of- (a) the hereditary revenues of the Crown, other than revenues from bona vacantia, ultimus haeres and treasure trove, (b) the royal arms and standard, (c) the compulsory acquisition of property held or used by a Minister of the Crown.

4. - (1) Paragraph 1 does not reserve property held by Her Majesty in Her private capacity. 

(2) Sub-paragraph (1) does not affect the reservation by paragraph 1 of the subject-matter of the Crown Private Estates Acts 1800 to 1873. 

5. Paragraph 1 does not reserve the use of the Scottish Seal. 

Political parties 

6. The registration and funding of political parties is a reserved matter. 

Foreign affairs, etc. 

7. - (1) International relations, including relations with territories outside the United Kingdom, the European Communities (and their institutions) and other international organisations, regulation of international trade, and international development assistance and co-operation are reserved matters. 

(2) Sub-paragraph (1) does not reserve- (a) observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law, (b) assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies.

Public service 

8. - (1) The Civil Service of the State is a reserved matter. 

(2) Sub-paragraph (1) does not reserve the subject-matter of- (a) Part I of the Sheriff Courts and Legal Officers (Scotland) Act 1927 (appointment of sheriff clerks and procurators fiscal, etc.), (b) Part III of the Administration of Justice (Scotland) Act 1933 (officers of the High Court of Justiciary and of the Court of Session).

Defence 

9. - (1) The following are reserved matters- (a) the defence of the realm, (b) the naval, military or air forces of the Crown, including reserve forces, (c) visiting forces, (d) international headquarters and defence organisations, (e) trading with the enemy and enemy property. 

(2) Sub-paragraph (1) does not reserve- (a) the exercise of civil defence functions by any person otherwise than as a member of any force or organisation referred to in sub-paragraph (1)(b) to (d) or any other force or organisation reserved by virtue of sub-paragraph (1)(a), (b) the conferral of enforcement powers in relation to sea fishing.

Treason 

10. Treason (including constructive treason), treason felony and misprision of treason are reserved matters.

There is also a long list of Part II, Specific reservations. These include:

All other matters are defined by section 29(3) as "devolved matters", though these are not described as the default position is devolution to the Scottish Parliament rather than excepted matters which are not within its purview.

Where there are disputes about devolution issues, these can be dealt with under Sched.6:
 

PART I: PRELIMINARY 

1. In this Schedule "devolution issue" means a question- (a) whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament, (b) whether subordinate legislation which a member of the Scottish Executive has purported to make or is proposing to make, or any provision of such legislation, would be within the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament, (c) whether a matter in relation to which a member of the Scottish Executive has purported to exercise or proposes to exercise a function (other than a function to make subordinate legislation) is a reserved matter, (d) whether a purported or proposed exercise of a function (other than a function to make subordinate legislation) by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights or with Community law, (e) whether a failure to act by a member of the Scottish Executive is incompatible with any of the Convention rights or with Community law, or (f) whether a matter in relation to which a Minister of the Crown has purported to exercise or proposes to exercise a function is a devolved matter. 

2. A devolution issue shall not be taken to arise in any proceedings merely because of any contention of a party to the proceedings which appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious.

3. This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland. 

Institution of proceedings 

4. - (1) Proceedings for the determination of a devolution issue may be instituted by the Advocate General or the Lord Advocate. 

(2) The Lord Advocate may defend any such proceedings instituted by the Advocate General. 

(3) This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person. 

Intimation of devolution issue 

5. A court or tribunal shall order intimation of any devolution issue which arises in any proceedings before it to be given to the Advocate General and the Lord Advocate (unless the person to whom the intimation would be given is a party to the proceedings). 

6. A person to whom intimation is given in pursuance of paragraph 5 may take part as a party in the proceedings, so far as they relate to a devolution issue. 

Reference of devolution issue to higher court

7. A court, other than the House of Lords or any court consisting of three or more judges of the Court of Session, may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Inner House of the Court of Session. 

8. A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Inner House of the Court of Session; and any other tribunal may make such a reference. 

9. A court, other than any court consisting of two or more judges of the High Court of Justiciary, may refer any devolution issue which arises in criminal proceedings before it to the High Court of Justiciary. 

References from superior courts to Judicial Committee

10. Any court consisting of three or more judges of the Court of Session may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 7 or 8) to the Judicial Committee. 

11. Any court consisting of two or more judges of the High Court of Justiciary may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 9) to the Judicial Committee. 

Appeals from superior courts to Judicial Committee 12. An appeal against a determination of a devolution issue by the Inner House of the Court of Session on a reference under paragraph 7 or 8 shall lie to the Judicial Committee. 

13. An appeal against a determination of a devolution issue by- (a) a court of two or more judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under paragraph 9), or (b) a court of three or more judges of the Court of Session from which there is no appeal to the House of Lords, shall lie to the Judicial Committee, but only with leave of the court concerned or, failing such leave, with special leave of the Judicial Committee.

PART III: PROCEEDINGS IN ENGLAND AND WALES Application of Part III 

14. This Part of this Schedule applies in relation to devolution issues in proceedings in England and Wales. 

Institution of proceedings 

15. - (1) Proceedings for the determination of a devolution issue may be instituted by the Attorney General. 

(2) The Lord Advocate may defend any such proceedings.

(3) This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person. 

Notice of devolution issue 

16. A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Attorney General and the Lord Advocate (unless the person to whom the notice would be given is a party to the proceedings). 

17. A person to whom notice is given in pursuance of paragraph 16 may take part as a party in the proceedings, so far as they relate to a devolution issue. 

Reference of devolution issue to High Court or Court of Appeal 

18. A magistrates' court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the High Court. 

19. - (1) A court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Court of Appeal. 

(2) Sub-paragraph (1) does not apply to- (a) a magistrates' court, the Court of Appeal or the House of Lords, or (b) the High Court if the devolution issue arises in proceedings on a reference under paragraph 18. 

20. A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Court of Appeal; and any other tribunal may make such a reference.

21. A court, other than the House of Lords or the Court of Appeal, may refer any devolution issue which arises in criminal proceedings before it to- (a) the High Court (if the proceedings are summary proceedings), or (b) the Court of Appeal (if the proceedings are proceedings on indictment). 

References from Court of Appeal to Judicial Committee

22. The Court of Appeal may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 19, 20 or 21) to the Judicial Committee. 

Appeals from superior courts to Judicial Committee

23. An appeal against a determination of a devolution issue by the High Court or the Court of Appeal on a reference under paragraph 18, 19, 20 or 21 shall lie to the Judicial Committee, but only with leave of the High Court or (as the case may be) the Court of Appeal or, failing such leave, with special leave of the Judicial Committee. 

PART V GENERAL 

Proceedings in the House of Lords 

32. Any devolution issue which arises in judicial proceedings in the House of Lords shall be referred to the Judicial Committee unless the House considers it more appropriate, having regard to all the circumstances, that it should determine the issue. 

Direct references to Judicial Committee

33. The Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland may require any court or tribunal to refer to the Judicial Committee any devolution issue which has arisen in proceedings before it to which he is a party.

34. The Lord Advocate, the Attorney General, the Advocate General or the Attorney General for Northern Ireland may refer to the Judicial Committee any devolution issue which is not the subject of proceedings. 

35. - (1) This paragraph applies where a reference is made under paragraph 34 in relation to a devolution issue which relates to the proposed exercise of a function by a member of the Scottish Executive.

(2) The person making the reference shall notify a member of the Scottish Executive of that fact. 

(3) No member of the Scottish Executive shall exercise the function in the manner proposed during the period beginning with the receipt of the notification under sub-paragraph (2) and ending with the reference being decided or otherwise disposed of. 

(4) Proceedings relating to any possible failure by a member of the Scottish Executive to comply with sub-paragraph (3) may be instituted by the Advocate General. 

(5) Sub-paragraph (4) is without prejudice to any power to institute proceedings exercisable apart from that sub-paragraph by any person. 

Expenses 

36. - (1) A court or tribunal before which any proceedings take place may take account of any additional expense of the kind mentioned in sub-paragraph (3) in deciding any question as to costs or expenses. 

(2) In deciding any such question, the court or tribunal may award the whole or part of the additional expense as costs or (as the case may be) expenses to the party who incurred it (whatever the decision on the devolution issue). 

(3) The additional expense is any additional expense which the court or tribunal considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of paragraph 6, 17 or 27. 

Procedure of courts and tribunals 

37. Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this Schedule including, in particular, provision- (a) for prescribing the stage in the proceedings at which a devolution issue is to be raised or referred, (b) for the sisting or staying of proceedings for the purpose of any proceedings under this Schedule, and (c) for determining the manner in which and the time within which any intimation or notice is to be given. Interpretation 38. Any duty or power conferred by this Schedule to refer a devolution issue to a court shall be construed as a duty or (as the case may be) power to refer the issue to the court for decision. 

A minister of the Scottish Executive must give a written statement before introduction that the Bill is within the competence of the Parliament (s.30). The Presiding Officer must also scrutinise for competence and block any excessive Bill and not refer it for Assent (s.31). The Presiding Officer may be overruled by the Parliament, but its powers are subject to s.33 and s34 - interventions by the Lord Advocate (the Government's legal adviser) or by the Secretary of State:
 

33. - (1) The Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Judicial Committee for decision. 

(2) Subject to subsection (3), he may make a reference in relation to a Bill at any time during- (a) the period of four weeks beginning with the passing of the Bill, and (b) any period of four weeks beginning with any subsequent approval of the Bill in accordance with standing orders made by virtue of section 34(4). 

(3) He shall not make a reference in relation to a Bill if he has notified the Presiding Officer that he does not intend to make a reference in relation to the Bill, unless the Bill has been approved as mentioned in subsection (2)(b) since the notification.

34. - (1) If a Bill contains provisions- (a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations, or (b) which are within the legislative competence of the Parliament by virtue of subsection (3) (as it applies in relation to Scots private law) or subsection (4) of section 28 but which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of an enactment as it applies to reserved matters, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent. 

(2) The order must identify the Bill and the provisions in question and state the reasons for making the order. 

(3) The order may be made at any time during- (a) the period of four weeks beginning with the passing of the Bill, and (b) any period of four weeks beginning with any subsequent approval of the Bill in accordance with standing orders made by virtue of section 34(4).

(4) The Secretary of State shall not make an order in relation to a Bill if he has notified the Presiding Officer that he does not intend to do so, unless the Bill has been approved as mentioned in subsection (3)(b) since the notification.

In summary it is recognised in section 37 that " The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act." But the Scottish Parliament cannot change those Acts, and the Acts themselves are not expressly amended.

Part II of the Act deals with the Scottish Administration

There will be a Scottish Executive consisting of the First Minister, other Ministers appointed by the First Minister, the Lord Advocate and the Solicitor General (s.44). The First Minister must enjoy the confidence of the parliament and must be an MSP - but there is nothing to stop cross-membership with the Westminster or European Parliaments or of a local council (s.45, 46). There is no limit on number of Ministers who can sit in the Scottish Parliament but appointments require approval of the Parliament (s.47); the same applies to Junior Ministers (s.49). The functions exercisable by Ministers are described by s.52 and 53. In the main, they consist of powers now exercised by the Secretary of State for Scotland and other UK Ministers. Various powers can be exercised by agreement with UK ministers (s.55) or can be shared with them (s.56).
 

52. - (1) Statutory functions may be conferred on the Scottish Ministers by that name. 

53. - (1) The functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.

(2) Those functions are- (a) those of Her Majesty's prerogative and other executive functions which are exercisable on behalf of Her Majesty by a Minister of the Crown, including functions conferred on a Minister of the Crown by a prerogative instrument, and (b) functions conferred on a Minister of the Crown by any pre-commencement enactment; but do not include any retained functions of the Lord Advocate.

But Ministers may not act contrary to European Community law or Convention rights (s.57). Where the Secretary of State " has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Executive would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken"; or he may also require actions to be taken under international obligations. (s.58)

The tax varying power is set out in Part IV of the Act (see s.73). It limits the power to a variation of 3p in the pound. Otherwise, the budget (around £24bn in 1998) is as paid over from UK taxes (Part III of the Act).

Other matters

To assist the standards of good administration, the Scottish Parliament is to set up a Scottish ombudsman (s.91).

There was a great deal of controversy during the passage of the Bill about the transfer of powers to appoint and dismiss judges. Under section 95, as regards appointment

As regards dismissal

GOVERNMENT OF WALES ACT 1998

Many of the details are the same as for Scotland, though the powers granted are significantly less extensive.

The Assembly

The Assembly consists of 60 Members. 20 are additional members, elected from the Assembly electoral regions which shall be the five European constituencies in Wales provided for by the European Parliamentary Constituencies (Wales) Order 1994. The Assembly is to be conferred with mainly executive and administrative functions. The essence to transfer most of the administrative functions of the Secretary of State for Wales to the Assembly. The Assembly also has a consultative role in relation to Westminster legislation and to certain public appointments - the Secretary of State must consult it. It will also provide the prime political forum - involved in discussion and lobbying - for Wales. The procedures of the Assembly are set out in Part III. There will be sets of standing orders. Much of the work is to take place in committees which will reflect party strengths. There will be an Executive Committee (see below). The scrutiny of draft statutory instruments will also take place in committee.
 

PART I: THE NATIONAL ASSEMBLY FOR WALES 

1- (1) There shall be an Assembly for Wales to be known as the National Assembly for Wales or Cynulliad Cenedlaethol Cymru (but referred to in this Act as the Assembly). 

2. - (1) The Assembly shall consist of- (a) one member for each Assembly constituency, and (b) members for each Assembly electoral region. 

(2) The Assembly constituencies and Assembly electoral regions, and the number of Assembly seats for each Assembly electoral region, shall be as provided for by or in accordance with Schedule 1. 

PART II: ASSEMBLY FUNCTIONS 

21. The Assembly shall have the functions which are- (a) transferred to, or made exercisable by, the Assembly by virtue of this Act, or (b) conferred or imposed on the Assembly by or under this Act or any other Act.

Transfer of Ministerial functions to Assembly

22. - (1) Her Majesty may by Order in Council- (a) provide for the transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales, (b) direct that any function so far as so exercisable shall be exercisable by the Assembly concurrently with the Minister of the Crown, or (c) direct that any function so far as exercisable by a Minister of the Crown in relation to Wales shall be exercisable by the Minister only with the agreement of, or after consultation with, the Assembly. 

(2) The Secretary of State shall, before the first ordinary election, lay before each House of Parliament the draft of an Order in Council under this section making provision for the transfer of such functions in each of the fields specified in Schedule 2 as the Secretary of State considers appropriate. 

(3) An Order in Council under this section may contain any appropriate consequential, incidental, supplementary or transitional provisions or savings (including provisions in the form of amendments or repeals of enactments). 

(4) No recommendation shall be made to Her Majesty in Council to make an Order in Council under this section- (a) unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, each House of Parliament, and (b) in the case of an Order in Council varying or revoking a previous Order in Council, unless such a draft has also been laid before, and approved by a resolution of, the Assembly. 

(5) Schedule 3 (which makes further provision about the transfer etc. of functions by Order in Council under this section) has effect.

The detailed transfer of functions is dealt with by Scheds. 2 and 3. The first issues to be transferred (under sched. 2) are various aspects of the following (most of which were previously administered through the Welsh Office):

Note that powers to be granted by London are specified rather than powers to be retained by London (as in the case of Scotland).

The Assembly will be consulted on primary Westminster legislation relating to Wales according to s.31:
 

31. - (1) As soon as is reasonably practicable after the beginning of each session of Parliament, the Secretary of State for Wales shall undertake with the Assembly such consultation about the government's legislative programme for the session as appears to him to be appropriate but including attending and participating in proceedings of the Assembly relating to the programme on at least one occasion.

One of expressed agendas of the Assembly is to reform the Welsh health authorities as well as other public bodies in Wales (s.27, 28) - there is the possibility of transferring functions to local authorities.

All actions taken are subject to European Community law (s.106), the European Convention on Human Rights (s.107), and other international obligations (s.108). And they are subject to the crutiny of the Welsh Administration Ombudsman (s.111).

The Assembly also has deliberative functions - on most of the matters in cannot legislate, but there are some limited powers to make delegated legislation under Westminster legislation. In order to assist its deliberations, it can also hold opinion polls (s.36).
 

33. The Assembly may consider, and make appropriate representations about, any matter affecting Wales.

36. - (1) The Assembly may hold a poll in an area consisting of Wales or any part (or parts) of Wales for the purpose of ascertaining the views of those polled about whether or how any of the Assembly's functions (other than those under section 33) should be exercised.

And it will have a close relationship with the Secretary of State for Wales who is expected to attend from time to time (s.76):
 

76. - (1) The Secretary of State for Wales shall be entitled to attend and participate in any proceedings of the Assembly.

Disputes about devolution issues can be dealt with under s.109 and Sched 8:
 

PART I PRELIMINARY 

1. - (1) In this Schedule "devolution issue" means- (a) a question whether a function is exercisable by the Assembly, (b) a question whether a purported or proposed exercise of a function by the Assembly is, or would be, within the powers of the Assembly (including a question whether a purported or proposed exercise of a function by the Assembly is, or would be, outside its powers by virtue of section 106(7) or 107(1)), (c) a question whether the Assembly has failed to comply with a duty imposed on it (including a question whether the Assembly has failed to comply with any obligation which is an obligation of the Assembly by virtue of section 106(1) or (6)), or (d) a question whether a failure to act by the Assembly is incompatible with any of the Convention rights. (2) In this Schedule- (a) "the Judicial Committee" means the Judicial Committee of the Privy Council, and (b) "civil proceedings" means any proceedings other than criminal proceedings. 

2. A devolution issue shall not be taken to arise in any proceedings merely because of any contention of a party to the proceedings which appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious.

PART II PROCEEDINGS IN ENGLAND AND WALES 

Application of Part II 

3. This Part of this Schedule applies in relation to devolution issues in proceedings in England and Wales.

Institution of proceedings 

4. - (1) Proceedings for the determination of a devolution issue may be instituted by the Attorney General. 

(2) Sub-paragraph (1) does not limit any power to institute proceedings exercisable apart from that sub-paragraph by any person.

Notice of devolution issue 

5. - (1) A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Attorney General and the Assembly (unless a party to the proceedings).

(2) A person to whom notice is given in pursuance of sub-paragraph (1) may take part as a party in the proceedings, so far as they relate to a devolution issue.

Reference of devolution issue to High Court or Court of Appeal 

6. A magistrates' court may refer any devolution issue which arises in civil proceedings before it to the High Court.

7. - (1) A court may refer any devolution issue which arises in civil proceedings before it to the Court of Appeal. 

(2) Sub-paragraph (1) does not apply- (a) to a magistrates' court, the Court of Appeal or the House of Lords, or (b) to the High Court if the devolution issue arises in proceedings on a reference under paragraph 6. 

8. A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Court of Appeal; and any other tribunal may make such a reference.

9. A court, other than the Court of Appeal or the House of Lords, may refer any devolution issue which arises in criminal proceedings before it to- (a) the High Court if the proceedings are summary proceedings, or (b) the Court of Appeal if the proceedings are proceedings on indictment. References from Court of Appeal to Judicial Committee 

10. The Court of Appeal may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 7, 8 or 9) to the Judicial Committee. Appeals from superior courts to Judicial Committee 11. An appeal against a determination of a devolution issue by the High Court or the Court of Appeal on a reference under paragraph 6, 7, 8 or 9 shall lie to the Judicial Committee, but only- (a) with leave of the court concerned, or (b) failing such leave, with special leave of the Judicial Committee.

PART V GENERAL 

Proceedings in the House of Lords 

29. Any devolution issue which arises in judicial proceedings in the House of Lords shall be referred to the Judicial Committee unless the House considers it more appropriate, having regard to all the circumstances, that they should determine the issue.

Direct references to Judicial Committee 

30. - (1) The relevant law officer or the Assembly may require any court or tribunal to refer to the Judicial Committee any devolution issue which has arisen in any proceedings before it to which he or it is a party. (

2) In sub-paragraph (1) "the relevant law officer" means- (a) in relation to proceedings in England and Wales, the Attorney General, (b) in relation to proceedings in Scotland, the Advocate General for Scotland, and (c) in relation to proceedings in Northern Ireland, the Attorney General for Northern Ireland.

31. - (1) The Attorney General or the Assembly may refer to the Judicial Committee any devolution issue which is not the subject of proceedings. 

(2) Where a reference is made under sub-paragraph (1) by the Attorney General in relation to a devolution issue which relates to the proposed exercise of a function by the Assembly- (a) the Attorney General shall notify the Assembly of that fact, and (b) the Assembly shall not exercise the function in the manner proposed during the period beginning with the receipt of the notification and ending with the reference being decided or otherwise disposed of. 

The Judicial Committee 

32. Any decision of the Judicial Committee in proceedings under this Schedule- (a) shall be stated in open court, and (b) shall be binding in all legal proceedings (other than proceedings before the Judicial Committee).

33. No member of the Judicial Committee shall sit and act as a member of the Judicial Committee in proceedings under this Schedule unless he holds or has held- (a) the office of a Lord of Appeal in Ordinary, or (b) high judicial office as defined in section 25 of the Appellate Jurisdiction Act 1876 (ignoring for this purpose section 5 of the Appellate Jurisdiction Act 1887).

34. - (1) Her Majesty may by Order in Council- (a) confer on the Judicial Committee in relation to proceedings under this Schedule such powers as appear to be appropriate, (b) apply the Judicial Committee Act 1833 in relation to proceedings under this Schedule with exceptions and modifications, and (c) make rules for regulating the procedure with respect to proceedings under this Schedule before the Judicial Committee.

(2) An Order in Council under this paragraph may contain any appropriate consequential, incidental, supplementary or transitional provisions or savings (including provisions in the form of amendments or repeals of enactments).

(3) No recommendation shall be made to Her Majesty in Council to make an Order in Council under this paragraph which contains provisions in the form of amendments or repeals of enactments contained in an Act unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, each House of Parliament.

(4) A statutory instrument containing an Order in Council which makes provision falling within sub-paragraph (1)(a) or (b) shall (unless a draft of it has been approved by a resolution of each House of Parliament) be subject to annulment in pursuance of a resolution of either House of Parliament.

Costs 

35. - (1) A court or tribunal before which any proceedings take place may take account of any additional expense of the kind mentioned in sub-paragraph (3) in deciding any question as to costs or expenses. 

(2) In deciding any such question, the court or tribunal may award the whole or part of the additional expense as costs or expenses to the party who incurred it (whatever the decision on the devolution issue). 

(3) The additional expense is any additional expense which the court or tribunal considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of paragraph 5, 14 or 24.

Procedure of courts and tribunals 

36. Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this Schedule including, in particular, provision- (a) for prescribing the stage in the proceedings at which a devolution issue is to be raised or referred, (b) for the staying or sisting of proceedings for the purpose of any proceedings under this Schedule, and (c) for determining the manner in which and the time within which any notice or intimation is to be given.

References to be for decision 

37. Any function conferred by this Schedule to refer a devolution issue to a court shall be construed as a function of referring the issue to the court for decision. 

Executive Committee

The Assembly will be headed by an Executive Committee, which will consist of the Assembly First Secretary and the other Assembly Secretaries (s.56). and will also include an Audit Committee (checking finance) (s.60) and a Subordinate Legislation Scrutiny Committee (to ensure draft Assembly Orders are intra vires - in case of dispute, ordinary procedures of judicial review could be used - ie disputes will be heard by the High Court) (s.58). There shall also be committees dealing with regional matters (s.61). Note that the Assembly has no tax-raising powers - the London Government will continue to set the budget (around £7bn in 1998).

Other matters

The Assembly must comply with European Community law and the European Convention on Human Rights (sections 106, 107) and must have regard to equal opprtunities (section 120).

It has duties to promote local government, volutary organisations and economic development (sections 113-115)

Complaints about the actions of the Assembly can be taken to a newly created Welsh Adminsitration Ombudsman (section 111).


Last updated 1 October 2001

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