Government of Wales Act 2006

Transfers of Assembly functions: property, rights and liabilities U.K.

38 (1) In paragraphs 39 and 40 “transferred function” means a function— U.K.

(a) which is conferred or imposed on the Welsh Ministers, the First Minister or the Counsel General by a provision of this Act which re-enacts (with or without modifications) a provision of the Government of Wales Act 1998 (c. 38) which conferred or imposed the same or substantially the same function on the Assembly constituted by that Act,

(b) which is transferred to a person or body other than the Assembly by or by virtue of paragraph 30 or 31, or

(c) which is conferred or imposed on the Welsh Ministers, the First Minister or the Counsel General by a provision of any Act in consequence of the amendment of that Act by or under this Act.

(2) In paragraphs 39 and 40 “the transferee”, in relation to a transferred function, means—

(a) in the case of a function within paragraph (a) or (c) of sub-paragraph (1), the person or body on whom the function is conferred or imposed, and

(b) in the case of a function within paragraph (b) of that sub-paragraph, the person or body to whom the function is transferred.

(3) In paragraph 39 “transfer time”, in relation to a transferred function, means the time when the function first becomes exercisable by the transferee of the transferred function.

39 (1) The property, rights and liabilities to which the Assembly constituted by the Government of Wales Act 1998 is entitled or subject in connection with any transferred function are transferred to and vest in the transferee of the function. U.K.

(2) Anything (including legal proceedings) which relates to—

(a) any transferred function, or

(b) any property, rights or liabilities transferred by sub-paragraph (1) in connection with any transferred function,

and which is in the process of being done by or in relation to the Assembly constituted by the Government of Wales Act 1998 immediately before the transfer time may be continued by or in relation to the transferee of the transferred function.

(3) Anything which was done by or in relation to the Assembly constituted by the Government of Wales Act 1998 for the purpose of or in connection with—

(a) any transferred function, or

(b) any property, rights or liabilities transferred by sub-paragraph (1) in connection with any transferred function,

and which is in effect immediately before the transfer time has effect as if done by or in relation to the transferee of the transferred function.

(4) In any instruments, contracts or legal proceedings which relate to—

(a) any transferred function, or

(b) any property, rights or liabilities transferred by sub-paragraph (1) in connection with any transferred function,

and which are made or commenced before the transfer time, the transferee of the transferred function is substituted for the Assembly constituted by the Government of Wales Act 1998.

40 (1) Her Majesty may by Order in Council provide that all or any of the provisions of paragraph 39— U.K.

(a) do not apply in relation to particular transferred functions or to the property, rights and liabilities connected with the particular transferred functions or particular property, rights and liabilities so connected,

(b) are to apply only in relation to particular transferred functions or to particular property, rights or liabilities connected with transferred functions, or

(c) apply with modifications in relation to particular transferred functions or to the property, rights and liabilities connected with the particular transferred functions or particular property, rights and liabilities so connected.

(2) Paragraph 39 does not apply in relation to rights and liabilities under a contract of employment of a member of the staff of the Assembly constituted by the Government of Wales Act 1998 (c. 38).

(3) No recommendation is to be made to Her Majesty in Council to make an Order in Council under this paragraph unless a draft of the statutory instrument containing the Order in Council has been laid before and approved by a resolution of—

(a) each House of Parliament, and

(b) the Assembly constituted by the Government of Wales Act 1998 or the Assembly constituted by this Act.

41 (1) The Secretary of State may by order provide for the transfer to the Welsh Ministers, the First Minister, the Counsel General or the Assembly Commission of— U.K.

(a) any specified property, rights or liabilities, or

(b) property, rights or liabilities of any specified description,

to which the Assembly constituted by the Government of Wales Act 1998 is entitled or subject or to which that Assembly was entitled or subject immediately before the end of the initial period.

(2) An order under sub-paragraph (1) may provide for the transfer of any property, rights or liabilities to have effect subject to exceptions or reservations specified in or determined under the order.

(3) An order under sub-paragraph (1) may provide—

(a) for the creation in favour of the Assembly Commission of interests in, or rights over, property transferred to the Welsh Ministers, the First Minister or the Counsel General,

(b) for the creation in favour of the Welsh Ministers, the First Minister or the Counsel General of interests in, or rights over, property transferred to the Assembly Commission, or

(c) for the creation of new rights and liabilities between the Welsh Ministers, the First Minister or the Counsel General on the one hand and the Assembly Commission on the other.

(4) The Secretary of State may by order make provision for the continuation by or in relation to the Welsh Ministers, the First Minister, the Counsel General, or the Assembly Commission of—

(a) any specified thing, or

(b) anything of a specified description,

commenced by or in relation to the Assembly constituted by the Government of Wales Act 1998 (c. 38).

(5) The Secretary of State may by order make provision for—

(a) any specified thing, or

(b) anything of a specified description,

done by or in relation to the Assembly constituted by the Government of Wales Act 1998 to have effect as if done by or in relation to the Welsh Ministers, the First Minister, the Counsel General or the Assembly Commission.

(6) The Secretary of State may by order make provision for the substitution of the Welsh Ministers, the First Minister, the Counsel General or the Assembly Commission for the Assembly constituted by the Government of Wales Act 1998 in—

(a) any specified instrument, contract or legal proceedings, or

(b) any instrument, contract or legal proceedings of a specified description.

(7) An order under this paragraph may be made in consequence of provision made by this Act or in any other circumstances in which the Secretary of State considers it appropriate to make such an order.

(8) An order under this paragraph may not provide for the transfer of rights and liabilities under a contract of employment of a member of the staff of the Assembly constituted by the Government of Wales Act 1998.

(9) A statutory instrument containing an order under this paragraph is subject to annulment in pursuance of a resolution of either House of Parliament.

42 (1) A certificate issued by the Secretary of State that any property has been transferred by— U.K.

(a) paragraph 39, or

(b) an order under paragraph 41,

is conclusive evidence of the transfer.

(2) Paragraph 39, and orders under paragraph 41, have effect in relation to property, rights or liabilities to which they apply in spite of any provision (of whatever nature) which would otherwise prevent, penalise or restrict the transfer of the property, rights or liabilities.

(3) A right of pre-emption, right of return or other similar right does not operate or become exercisable as a result of any transfer of property or rights by virtue of paragraph 39 or an order under paragraph 41.

(4) Any such right has effect in the case of any such transfer as if the transferee were the same person in law as the transferor and no transfer of the property or rights had taken place.

(5) Such compensation as is just is to be paid to any person in respect of any such right which would, apart from sub-paragraph (3), have operated in favour of or become exercisable by that person but which, in consequence of the operation of that sub-paragraph, cannot subsequently operate in favour of or become exercisable by that person.

(6) Any compensation payable by virtue of sub-paragraph (5) is to be paid by the transferor or by the transferee or by both.

(7) The Secretary of State may by order make provision for the determination of disputes as to—

(a) whether compensation is payable under sub-paragraph (5),

(b) how much compensation is payable, and

(c) the person to whom or by whom it is to be paid.

(8) A statutory instrument containing an order under this paragraph is subject to annulment in pursuance of a resolution of either House of Parliament.

(9) Sub-paragraphs (2) to (8) apply in relation to the creation of rights or interests, or the doing of anything else, in relation to property as they apply in relation to a transfer of property; and references to the transferor and transferee are to be read accordingly.

(10) In this paragraph “right of return” means any right under a provision for the return or reversion of property in specified circumstances.