Commentary on Sections Part 4: General Section 41 and Schedule 2 – Consequential amendments and repeals
209.This section and Schedule 2 provide for the amendment of the 1978 Act, the Government of Wales Act 2006 and the Waste (Wales) Measure 2010.
210.Paragraph 1 of the Schedule makes amendments to the 1978 Act which are consequential on Part 2 of the Act. The new section 23B of the 1978 Act ensures that the 1978 Act no longer applies to Assembly Acts and Welsh subordinate instruments to which Part 2 applies, but that the 1978 Act continues to apply to other Assembly Acts, Assembly Measures and Welsh subordinate instruments.
211.Section 23B(4) makes clear that sections 12 to 14A of the 1978 Act continue to apply to existing powers and duties (and powers and duties under future Acts of the UK Parliament) that are exercised to make Welsh subordinate instruments after Part 2 of this Act comes into force. However, section 11 of the 1978 Act, which provides that words have the same meaning in subordinate legislation as they have in the parent Act, will not apply to instruments that are subject to Part 2.
212.The 1978 Act will continue to apply to Acts, Measures and instruments enacted before Part 2 of this Act comes into force. Under section 23B(3)(b) and (c), the 1978 Act will also continue to apply to two categories of instrument made by the Welsh Ministers or devolved Welsh authorities under Acts of the UK Parliament or retained direct EU legislation after Part 2 comes into force. It will apply to those instruments if they are made with any person who is not a devolved Welsh authority (e.g. joint or composite instruments containing subordinate legislation made by the Welsh Ministers and a Secretary of State) or if they contain any provisions that apply otherwise than in relation to Wales.
213.New section 23C makes provision about how references in the 1978 Act to enactments and other types of legislation will operate in relation to Welsh legislation, including Assembly Acts and Welsh subordinate instruments to which Part 2 of the Act applies. These provisions are intended to ensure that the 1978 Act continues to operate correctly in relation to interactions between legislation to which that Act applies and legislation to which Part 2 of this Act applies.
214.Paragraph 2 of Schedule 2 makes several amendments to the Government of Wales Act 2006.
215.The first amendment is consequential on section 5 of the Act, which provides for the equal status of the texts of bilingual Welsh legislation. Section 5 restates section 156(1) of the 2006 Act in relation to legislation to which Part 2 of this Act applies. Paragraph 2(2)(a) of Schedule 2 therefore amends section 156 of the 2006 Act so that subsection (1) does not apply to legislation to which Part 2 applies. Section 156(1) will continue to apply to other bilingual Welsh legislation (principally legislation enacted before Part 2 comes fully into force).
216.Paragraph 2(2)(b) of Schedule 2 repeals section 156(2) to (5) of the 2006 Act. Those provisions enable the Welsh Ministers to make orders providing that, when particular Welsh words and phrases are used in Welsh legislation, they are to have the same meaning as the English words and phrases specified in the order. This power has never been used, and there are no plans to use it. It could also be said that these provisions are inconsistent with the general proposition that precedes them – namely that both languages have equal status. Schedule 1 to this Act now makes general provision about the meaning of various Welsh words and phrases in Welsh legislation, which can be amended if additional words and phrases need to be defined; and an individual Assembly Act or Welsh subordinate instrument can make its own provision about the meaning of words and phrases in the particular Act or instrument.
217.Paragraph 2(3) of Schedule 2 repeals a reference to section 156(2) to (5) of the 2006 Act which is spent as a result of the repeal of section 156(2) to (5).
218.Paragraph 2(4) of Schedule 2 repeals the provision of the 2006 Act which originally inserted section 23B into the 1978 Act, because paragraph 1 of Schedule 2 is replacing all of section 23B.
219.Paragraph 3 of Schedule 2 amends the Waste (Wales) Measure 2010 to remove provisions which have the same effect as section 37 of the Act in relation to subordinate legislation under the Measure, and which will no longer be necessary once that section comes into force.