Detailed Commentary on Sections in Part 6 Tribunal proceedings Schedule 11: Transitional Provisions Paragraphs 34 and 35: Functions conferred or imposed by pre-commencement enactment: Parliamentary and Assembly procedures
832.These paragraphs deal with the different situation of functions of making subordinate legislation which were directly conferred (or imposed) on the ‘old Assembly’ by an enactment (usually an Act of Parliament) before the commencement of this Act , and which are now to be exercisable by the Welsh Ministers, the First Minister or the Counsel General. They cover two distinct kinds of situations: firstly those where a Minister of the Crown has a corresponding function in relation to England to that which will be exercisable by the Welsh Ministers in relation to Wales and secondly where this is not the case, i.e. the function is unique to Wales.
833.If there is a particular Parliamentary procedure which applies to subordinate legislation made by a Minister of the Crown in relation to England, and a corresponding function is exercisable in relation to Wales by the Welsh Ministers, then the equivalent Assembly procedure to that Parliamentary procedure (affirmative or negative as the case may be or, sometimes, the equivalent under Assembly procedures of “special Parliamentary procedure”) is to apply.
834.If Parliamentary procedures applied to a legislation making function of a Minister of the Crown and to the exercise of the corresponding function by the Welsh Ministers, the First Minister and the Counsel General, both the Parliamentary procedure and an equivalent Assembly procedure will apply when the Welsh Ministers, the First Minister or the Counsel General exercise the function.
835.Paragraph 35 provides for the procedures applying to a function of making subordinate legislation which falls into the other category of those directly conferred (or imposed) on the ‘old Assembly’ namely those where no Minister of the Crown has a corresponding function in relation to England.
836.The paragraph specifies what Assembly procedures are to apply in such a case.
837.Unless a procedure is specified in relation to such function, none is to apply.
838.If subordinate legislation is to be made by virtue of a function listed in Table 1, it is subject to being laid before and approved by a resolution of the Assembly before it is made.
839.If subordinate legislation is made by virtue of a function listed in Table 2, it must be laid before the Assembly and can be annulled in pursuance of a resolution of the Assembly.
840.However, the provisions made in paragraphs 34 and 35 do not apply where functions of making subordinate legislation have been transferred to the Welsh Ministers, which were formerly functions of the Assembly constituted under GoWA as the result of a designation made under section 2 (2) of the European Communities Act 1972. In those circumstances, section 59 of this Act determines Assembly procedure in relation to the making of subordinate legislation.