Wales Act 2017

Part 1 — Constitutional arrangements

Permanence of the National Assembly for Wales and Welsh Government

Permanence of the National Assembly for Wales and Welsh Government

1

In the Government of Wales Act 2006, before Part 1 (National Assembly for Wales) insert—

(A1) (1) The Assembly established by Part 1 and the Welsh Government established by Part 2 are a permanent part of the United Kingdom's constitutional arrangements. (2) The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Assembly and the Welsh Government. (3) In view of that commitment it is declared that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision of the people of Wales voting in a referendum. (A2) (1) The law that applies in Wales includes a body of Welsh law made by the Assembly and the Welsh Ministers. (2) The purpose of this section is, with due regard to the other provisions of this Act, to recognise the ability of the Assembly and the Welsh Ministers to make law forming part of the law of England and Wales.

Convention about Parliament legislating on devolved matters

Convention about Parliament legislating on devolved matters

2

In section 107 of the Government of Wales Act 2006 (Acts of the National Assembly for Wales), after subsection (5) insert—

(6) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly.

Legislative competence

Reserved trust ports

3

• (1) For section 108 of the Government of Wales Act 2006 (legislative competence) substitute—

(108A) (1) An Act of the Assembly is not law so far as any provision of the Act is outside the Assembly's legislative competence. (2) A provision is outside that competence so far as any of the following paragraphs apply— (a) it extends otherwise than only to England and Wales; (b) it applies otherwise than in relation to Wales or confers, imposes, modifies or removes (or gives power to confer, impose, modify or remove) functions exercisable otherwise than in relation to Wales; (c) it relates to reserved matters (see Schedule 7A); (d) it breaches any of the restrictions in Part 1 of Schedule 7B, having regard to any exception in Part 2 of that Schedule from those restrictions; (e) it is incompatible with the Convention rights or with EU law. (3) But subsection (2)(b) does not apply to a provision that— (a) is ancillary to a provision of any Act of the Assembly or Assembly Measure or to a devolved provision of an Act of Parliament, and (b) has no greater effect otherwise than in relation to Wales, or in relation to functions exercisable otherwise than in relation to Wales, than is necessary to give effect to the purpose of that provision. (4) For this purpose, a provision of an Act of Parliament is ““devolved”” if it would be within the Assembly's legislative competence if it were contained in an Act of the Assembly (ignoring any requirement for consent or consultation imposed under paragraph 8, 10 or 11 of Schedule 7B or otherwise). (5) In determining what is necessary for the purposes of subsection (3), any power to make laws other than that of the Assembly is disregarded. (6) The question whether a provision of an Act of the Assembly relates to a reserved matter is determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. (7) For the purposes of this Act a provision is ancillary to another provision if it— (a) provides for the enforcement of the other provision or is otherwise appropriate for making that provision effective, or (b) is otherwise incidental to, or consequential on, that provision.

• (2) For Schedule 7 to that Act (Acts of the Assembly) substitute—

• (a) the Schedule 7A set out in Schedule 1 to this Act, and

• (b) the Schedule 7B set out in Schedule 2 to this Act.

Devolved Welsh authorities

4

• (1) After section 157 of the Government of Wales Act 2006 insert—

(157A) (1) In this Act “"devolved Welsh authority”” means— (a) a public authority that meets the conditions in subsection (2), (b) a public authority that is specified, or is of a description specified, in Schedule 9A (whether or not it meets those conditions), or (c) the governing body of an institution within the higher education sector (within the meaning of section 91(5) of the Further and Higher Education Act 1992) whose activities are carried on, or principally carried on, in Wales. (2) A public authority meets the conditions in this section if its functions— (a) are exercisable only in relation to Wales, and (b) are wholly or mainly functions that do not relate to reserved matters. (3) In determining for the purposes of this section whether functions of a public authority are exercisable only in relation to Wales, no account is taken of any function that— (a) is exercisable otherwise than in relation to Wales, and (b) could (apart from this paragraph) be conferred or imposed by provision falling within the Assembly's legislative competence (by virtue of section 108A(3)). (4) Where the conditions in subsection (2) are relevant to determining whether a provision of an Act of the Assembly is within the Assembly's legislative competence, the time for assessing whether those conditions are met is the time when the Act is passed. (5) Her Majesty may by Order in Council amend Schedule 9A— (a) so as to remove or revise an entry, or (b) so as to add or substitute a public authority whose functions— (i) are exercisable wholly or mainly in relation to Wales, and (ii) are wholly or mainly functions that do not relate to reserved matters. (6) No recommendation is to be made to Her Majesty in Council to make an Order in Council under this section 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 the Assembly. (7) Subsection (6) does not apply to a statutory instrument containing an Order in Council that only makes provision for— (a) the omission of an entry where the authority concerned has ceased to exist, or (b) the variation of an entry in consequence of a change of name or transfer of functions. Such an Order in Council is subject to annulment in pursuance of a resolution of either House of Parliament. (8) In this section “"public authority”” means a body, office or holder of an office that has functions of a public nature.

• (2) After Schedule 9 to that Act insert the Schedule 9A set out in Schedule 3 to this Act.

Elections

Power to make provision about elections

5

• (1) For section 13 of the Government of Wales Act 2006 (power to make provision about elections etc) substitute—

(13) (1) The Welsh Ministers may by order make provision that would be within the legislative competence of the Assembly, if included in an Act of the Assembly, as to— (a) the conduct of elections of Assembly members, (b) the questioning of an election of Assembly members and the consequences of irregularities, and (c) the return of an Assembly member otherwise than at an election. (2) The provision that may be made under subsection (1)(a) includes, in particular, provision— (a) about the registration of electors, (b) for disregarding alterations in a register of electors, (c) about the limitation of the election expenses of candidates (and the creation of criminal offences in connection with the limitation of such expenses), (d) for the combination of polls, (e) for modifying the application of sections 6 and 8(2) where the poll at an election for the return of an Assembly constituency member is abandoned (or notice of it is countermanded), and (f) for modifying section 9(7) to ensure the allocation of the correct number of seats for the region. (3) The provision that may be made under subsection (1)(c) includes, in particular, provision modifying section 11(3) to (5). (4) An order under this section may— (a) apply or incorporate, with or without modifications or exceptions, any provision of or made under the election enactments, and (b) so far as may be necessary in consequence of any provision made by an order under this section, make modifications of any provision made by or under any enactment relating to the registration of parliamentary electors or local government electors. (5) In subsection (4)(a) “"the election enactments”” means— (a) the Representation of the People Acts, (b) the Political Parties, Elections and Referendums Act 2000, (c) the European Parliamentary Elections Act 2002, and (d) any other enactments relating to parliamentary elections, European Parliamentary elections or local government elections. (6) No return of an Assembly member at an election may be questioned except by an election petition under the provisions of Part 3 of the Representation of the People Act 1983 as applied or incorporated in an order under this section. (7) No order is to be made under this section unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, the Assembly. (13A) (1) The Secretary of State may by regulations make provision for— (a) the combination of polls at ordinary general elections of Assembly members with polls at the elections listed in subsection (2), and (b) the combination of polls at extraordinary general elections of Assembly members, and by-elections for the return of Assembly members, with polls at the elections listed in subsections (2) and (3). (2) The elections are— (a) early parliamentary general elections, (b) parliamentary by-elections, and (c) European Parliamentary by-elections. (3) The elections are— (a) parliamentary general elections, and (b) European Parliamentary general elections. (4) The Secretary of State may not make regulations under this section without the agreement of the Welsh Ministers. (5) Regulations under this section may— (a) apply or incorporate, with or without modifications or exceptions, any provision made by or under the election enactments, and (b) modify any form contained in, or in regulations or rules made under, the Representation of the People Acts so far as may be necessary to enable it to be used both for the original purpose and in relation to elections of Assembly members. (6) In subsection (5)(a) “"the election enactments”” has the meaning given by section 13(5). (7) No regulations are to be made under this section unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.

• (2) In section 15 of the Representation of the People Act 1985 (combination of polls), after subsection (5C) insert—

(5D) Before making provision under subsection (5) in connection with the combination of polls where one of the elections is a local government election in Wales, the Secretary of State must consult the Welsh Ministers.

• (3) In section 7 of the Political Parties, Elections and Referendums Act 2000 (Commission to be consulted on changes to electoral law), in subsection (2)(f), after ““64(3)”” insert “ or regulations under section 13A ”.

Timing of elections

6

• (1) Section 3 of the Government of Wales Act 2006 (ordinary general elections) is amended as set out in subsections (2) to (5).

• (2) In subsection (1), for the words after ““was held,”” substitute

unless— (a) subsection (1A) prevents the poll being held on that day, or (b) the day of the poll is determined by a proclamation under section 4.

• (3) After subsection (1) insert—

(1A) The poll is not to be held on the same date as the date of the poll at— (a) a parliamentary general election (other than an early parliamentary general election), or (b) a European Parliamentary general election. (1B) Where subsection (1A) prevents the poll being held on the day specified in subsection (1), the poll is to be held on such day, subject to subsection (1A), as the Welsh Ministers may by order specify unless the day of the poll is determined by a proclamation under section 4(2) as modified by section 4(2A).

• (4) In subsection (2), after ““May”” insert “ or on the day specified by an order under subsection (1B) ”.

• (5) After subsection (4) insert—

(5) No order is to be made under subsection (1B) unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, the Assembly.

• (6) Section 4 of that Act (power to vary date of ordinary general election) is amended in as set out in subsections (7) to (11).

• (7) For subsections (1) and (2) substitute—

(1) Subject to section 3(1A), the Presiding Officer may propose, for the holding of the poll at an ordinary general election, a day which is not more than one month earlier, nor more than one month later, than the first Thursday in May. (2) If the Presiding Officer proposes a day under subsection (1), Her Majesty may by proclamation under the Welsh Seal— (a) dissolve the Assembly, (b) require the poll at the election to be held on the day proposed, and (c) require the Assembly to meet within the period of seven days beginning immediately after the day of the poll. (2A) Where a day is specified by an order under section 3(1B), subsection (1) applies as if the reference to the first Thursday in May were a reference to that day.

• (8) In subsection (3), for ““(2)(b)”” substitute “ (2)(c) ”.

• (9) In subsection (4)—

• (a) for ““An order under this section may”” substitute “ The Welsh Ministers may by order ”;

• (b) for ““Secretary of State considers”” substitute “ Welsh Ministers consider ”;

• (c) after ““poll”” insert “ under this section ”.

• (10) Omit subsection (5).

• (11) In subsection (6), for ““either House of Parliament”” substitute “ the Assembly ”.

• (12) Section 5 of that Act (extraordinary general elections) is amended as set out in subsections (13) and (14).

• (13) In subsection (1), for ““Secretary of State”” substitute “ Presiding Officer ”.

• (14) In subsection (4)—

• (a) for ““Secretary of State”” substitute “ Presiding Officer ”;

• (b) for ““Order in Council”” substitute “ proclamation under the Welsh Seal ”.

• (15) The Representation of the People Act 1983 is amended as set out in subsections (16) to (20).

• (16) In section 37 (ordinary day of local elections in England and Wales)—

• (a) in subsection (1), and in the heading, omit ““and Wales””;

• (b) in subsection (2A), for the words after ““under”” substitute “ section 37A. ”

• (17) After that section insert—

(37ZA) (1) In every year the ordinary day of election of councillors is the same for all local government areas in Wales and, subject to section 37B, and unless subsection (2) applies, is— (a) the first Thursday in May; (b) such other day as may be fixed by the Welsh Ministers by order made not later than 1st February in the year preceding the year (or, in the case of an order affecting more than one year, the first year) in which the order is to take effect. (2) The ordinary day of election of councillors is not the day specified in or fixed under subsection (1) if that day is the day of the poll at an ordinary general election of members of the National Assembly for Wales. (3) Where under subsection (2) the ordinary day of election of councillors is not the day specified in or fixed under subsection (1), it is such other day as the Welsh Ministers may by order specify. (4) The power to make an order under subsection (1)(b) or (3) is exercisable by statutory instrument. (5) A statutory instrument containing an order under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by a resolution of the National Assembly for Wales.

• (18) Section 37B (power to change date of local elections to date of European Parliamentary general election: Wales) is amended as follows.

• (19) After subsection (1) insert—

(1A) The Welsh Ministers may not make an order under this section if the date of the poll at the European Parliamentary general election is the same date as the poll at an ordinary general election of members of the National Assembly for Wales.

• (20) In subsection (4)(b), for ““37(1)(b)”” substitute “ 37ZA(1)(b) ”.

Electoral registration: the digital service

7

• (1) Section 10ZC of the Representation of the People Act 1983 (registration of electors in Great Britain) is amended as set out in subsections (2) to (4).

• (2) In subsection (4)—

• (a) for ““this section, so far as”” substitute

this section— (a) so far as

;

• (b) at the end insert

, and (b) so far as it is exercisable by a Minister of the Crown to make provision about a UK digital service in relation to elections in Wales, is exercisable by the Welsh Ministers concurrently with that Minister.

• (3) After subsection (5) insert—

(5A) The power of the Welsh Ministers to make regulations by virtue of subsection (4) is not exercisable without the agreement of a Minister of the Crown. (5B) A statutory instrument containing regulations made by the Welsh Ministers by virtue of subsection (4) is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

• (4) In subsection (6), after the definition of ““election in Scotland”” insert—

“"election in Wales”” means— (a) an election of Assembly members, or (b) a local government election in Wales;

.

• (5) Section 10ZD of that Act (registration of electors in Great Britain: alterations) is amended as set out in subsections (6) to (8).

• (6) In subsection (4)—

• (a) for ““this section, so far as”” substitute

this section— (a) so far as

;

• (b) at the end insert

, and (b) so far as it is exercisable by a Minister of the Crown to make provision about a UK digital service in relation to elections in Wales, is exercisable by the Welsh Ministers concurrently with that Minister.

• (7) After subsection (5) insert—