Government of Wales Act 2006

[F1 Retained] [F2 EU] law, human rights and international obligations etc. U.K.

Textual Amendments

F1 Word in s. 80 cross-heading inserted (31.12.2020) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 3 para. 36 (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(l) (with reg. 10)

F2 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 2, 3-6

80 [F3 Retained] [F2 EU] law U.K.

(1) [F4 A retained EU obligation] of the United Kingdom is also an obligation of the Welsh Ministers if and to the extent that the obligation could be implemented (or enabled to be implemented) or complied with by the exercise by the Welsh Ministers of any of their functions.

(2) Subsection (1) does not apply in the case of [F5 a retained EU obligation] of the United Kingdom if—

(a) it is an obligation to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise), and

(b) the quantity relates to the United Kingdom (or to an area including the United Kingdom or to an area consisting of a part of the United Kingdom which includes [F6 the whole or part of Wales or of the Welsh zone]).

(3) But if such [F7 a retained EU obligation] could (to any extent) be implemented (or enabled to be implemented) or complied with by the exercise by the Welsh Ministers of any of their functions, a Minister of the Crown may by order provide for the achievement by the Welsh Ministers (in the exercise of their functions) of so much of the result to be achieved under [F8 the retained EU obligation] as is specified in the order.

(4) The order may specify the time by which any part of the result to be achieved by the Welsh Ministers is to be achieved.

(5) No order is to be made by a Minister of the Crown under subsection (3) unless the Minister of the Crown has consulted the Welsh Ministers.

(6) A statutory instrument containing an order under subsection (3) is subject to annulment in pursuance of a resolution of either House of Parliament.

(7) Where an order under subsection (3) is in force in relation to [F9 a retained EU obligation], to the extent that [F10 the retained EU obligation] involves achieving what is specified in the order it is also an obligation of the Welsh Ministers (enforceable as if it were an obligation of the Welsh Ministers under subsection (1)).

(8) [F11 The Welsh Ministers have no power to make, confirm or approve any subordinate legislation so far as the legislation modifies retained EU law and the modification is of a description specified in regulations made by a Minister of the Crown.

(8A) But subsection (8) does not apply—

(a) so far as the modification would be within the [F12 Senedd's] legislative competence if it were included in an Act of the [F12 Senedd], or

(b) to the making of regulations under [F13 —

(i) Part 1 or 1B of Schedule 2 to the European Union (Withdrawal) Act 2018 (power to deal with deficiencies arising from withdrawal and certain powers in connection with the EU withdrawal agreement),

(ii) Schedule 4 to that Act (powers in connection with fees and charges), F14 ...

(iii) section 12, 13 or 14 of the European Union (Withdrawal Agreement) Act 2020 (certain powers relating to citizens' rights)] [F15 , F16 ...

(iv) section 31, 32 or 33 of the European Union (Future Relationship) Act 2020 (powers in connection with future relationship agreements etc.)] [F17 , or

(v) section 1(1) or 2(1) of the Trade Act 2021.]

(8B) No regulations are to be made under subsection (8) unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.

(8C) A Minister of the Crown must not lay a draft as mentioned in subsection (8B) unless—

(a) the [F12 Senedd] has made a consent decision in relation to the laying of the draft, or

(b) the 40 day period has ended without the [F12 Senedd] having made such a decision.

(8D) For the purposes of subsection (8C) a consent decision is—

(a) a decision to agree a motion consenting to the laying of the draft,

(b) a decision not to agree a motion consenting to the laying of the draft, or

(c) a decision to agree a motion refusing to consent to the laying of the draft;

and a consent decision is made when the [F12 Senedd] first makes a decision falling within any of paragraphs (a) to (c) (whether or not it subsequently makes another such decision).

(8E) In subsection (8C)—

• “the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the Welsh Ministers,

and, in calculating that period, no account is to be taken of any time during which the [F12 Senedd] is dissolved or during which it is in recess for more than four days.

(8F) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (8B) must—

(a) provide a copy of the draft to the Welsh Ministers, and

(b) inform the Presiding Officer that a copy has been so provided.

(8G) See also section 157ZA (duty to make explanatory statement about regulations under subsection (8) including a duty to explain any decision to lay a draft without the consent of the [F12 Senedd] ).

(8H) No regulations may be made under subsection (8) after the end of the period of two years beginning with exit day.

(8I) Subsection (8H) does not affect the continuation in force of regulations made under subsection (8) at or before the end of the period mentioned in subsection (8H).

(8J) Any regulations under subsection (8) which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to the making, confirming or approving of subordinate legislation after the end of that period.

(8K) Subsections (8C) to (8I) do not apply in relation to regulations which only relate to a revocation of a specification.

(8L) The restriction in subsection (8) is in addition to any restriction in section 7 of the European Union (Withdrawal) Act 2018 or elsewhere on the power of the Welsh Ministers to make, confirm or approve any subordinate legislation so far as the legislation modifies retained EU law.]

(9) Subsections (1) [F18 , (8) and (8L)] apply to the First Minister and the Counsel General as to the Welsh Ministers.

Textual Amendments

F3 Word in s. 80 heading inserted (31.12.2020) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 3 para. 37(2) (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(l) (with reg. 10)

F4 Words in s. 80(1) substituted (31.12.2020) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 3 para. 37(3) (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(l) (with reg. 10)

F5 Words in s. 80(2) substituted (31.12.2020) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 3 para. 37(4) (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(l) (with reg. 10)

F6 Words in s. 80(2)(b) substituted (12.11.2009 for certain purposes and 12.1.2010 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), ss. 43, 324, Sch. 4 Pt. 2 para. 6(5); S.I. 2009/3345, art. 2, Sch. para. 7

F7 Words in s. 80(3) substituted (31.12.2020) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 3 para. 37(5)(a) (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(l) (with reg. 10)

F8 Words in s. 80(3) substituted (31.12.2020) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 3 para. 37(5)(b) (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(l) (with reg. 10)

F9 Words in s. 80(7) substituted (31.12.2020) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 3 para. 37(6)(a) (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(l) (with reg. 10)

F10 Words in s. 80(7) substituted (31.12.2020) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 3 para. 37(6)(b) (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(l) (with reg. 10)

F11 S. 80(8)-(8L) substituted for s. 80(8) (26.6.2018 for specified purposes, 31.12.2020 in so far as not already in force) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(3)(b), Sch. 3 para. 2 (with s. 19, Sch. 2 para. 3(5)(6), 14(5)(6), Sch. 8 paras. 37, 41, 42); S.I. 2020/1622, reg. 3(l) (with reg. 10)

F12 Words in Act substituted (6.5.2020) by Senedd and Elections (Wales) Act 2020 (anaw 1), s. 42(2), Sch. 1 para. 2(19) (with Sch. 1 para. 2(11)-(14))

F13 S. 80(8A)(b)(i)-(iii) substituted for words (31.1.2020 for specified purposes, 31.12.2020 in so far as not already in force) by European Union (Withdrawal Agreement) Act 2020 (c. 1), s. 42(7), Sch. 5 para. 28 (with s. 38(3)); S.I. 2020/75, reg. 4(n)(ix); S.I. 2020/1622, reg. 5(j) (with reg. 10)

F14 Word in s. 80(8A)(b)(ii) omitted (31.12.2020) by virtue of European Union (Future Relationship) Act 2020 (c. 29), s. 40(7), Sch. 6 para. 3; S.I. 2020/1662, reg. 2(ff)

F15 S. 80(8A)(b)(iv) and word inserted (31.12.2020) by European Union (Future Relationship) Act 2020 (c. 29), s. 40(7), Sch. 6 para. 3; S.I. 2020/1662, reg. 2(ff)

F16 Word in s. 80(8A)(b)(iii) omitted (6.5.2021) by virtue of Trade Act 2021 (c. 10), Sch. 3 para. 2; S.I. 2021/550, reg. 2(h)

F17 S. 80(8A)(b)(v) and word inserted (6.5.2021) by Trade Act 2021 (c. 10), Sch. 3 para. 2; S.I. 2021/550, reg. 2(h)

F18 Words in s. 80(9) substituted (31.12.2020) by virtue of European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 3 para. 37(7) (with s. 19, Sch. 8 para. 37); S.I. 2020/1622, reg. 3(l) (with reg. 10)

Modifications etc. (not altering text)

C1 S. 80(8)-(8L): power to repeal conferred (4.7.2018) by European Union (Withdrawal) Act 2018 (c. 16), ss. 12(9)-(11), 25(4) (with s. 19, Sch. 8 paras. 37, 41); S.I. 2018/808, reg. 3(c)

C2 S. 80(8) restricted (1.3.2019) by European Union (Withdrawal) Act 2018 (c. 16), s. 25(4), Sch. 8 para. 41(7)(9) (with s. 19, Sch. 8 para. 37); S.I. 2019/399, reg. 2

C3 S. 80(8) excluded (19.5.2020) by European Union (Withdrawal Agreement) Act 2020 (c. 1), s. 42(7), Sch. 5 para. 64 (with s. 38(3)); S.I. 2020/518, reg. 2(p)(v)

C4 S. 80(8) restricted (31.12.2020) by European Union (Future Relationship) Act 2020 (c. 29), s. 40(6)(g), Sch. 6 para. 12

C5 S. 80(8) excluded in part (6.5.2021) by Trade Act 2021 (c. 10), s. 18(2)-(4), Sch. 3 para. 4; S.I. 2021/550, reg. 2(h)

Commencement Information

I1 Ss. 1-94, 97-106 in force immediately after "the 2007 election" by s. 161(1) (subject to s. 161(4)(5))

81 Human rights U.K.

(1) The Welsh Ministers have no power—

(a) to make, confirm or approve any subordinate legislation, or

(b) to do any other act,

so far as the subordinate legislation or act is incompatible with any of the Convention rights.

(2) Subsection (1) does not enable a person—

(a) to bring any proceedings in a court or tribunal, or

(b) to rely on any of the Convention rights in any such proceedings,

in respect of an act unless that person would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.

(3) Subsection (2) does not apply to the Attorney General, the Counsel General, the Advocate General for Scotland, the Advocate General for Northern Ireland or the Attorney General for Northern Ireland.

(4) Subsection (1)—

(a) does not apply to an act which, by virtue of subsection (2) of section 6 of the Human Rights Act 1998 (c. 42), is not unlawful under subsection (1) of that section, and

(b) does not enable a court or tribunal to award in respect of any act any damages which it could not award on finding the act unlawful under that subsection.

(5) Subsection (1) applies to the First Minister and the Counsel General as to the Welsh Ministers.

(6) In subsection (2) “the Convention” has the same meaning as in the Human Rights Act 1998.

Commencement Information

I2 Ss. 1-94, 97-106 in force immediately after "the 2007 election" by s. 161(1) (subject to s. 161(4)(5))

82 International obligations etc. U.K.

(1) If the Secretary of State considers that any action proposed to be taken by the Welsh Ministers would be incompatible with any international obligation, the Secretary of State may by order direct that the proposed action is not to be taken.

(2) If the Secretary of State considers that an action capable of being taken by the Welsh Ministers is required for the purposes of giving effect to any international obligation, the Secretary of State may by order direct the Welsh Ministers to take the action.

(3) If the Secretary of State considers that any subordinate legislation made, or which could be revoked, by the Welsh Ministers is incompatible with any international obligation or the interests of defence or national security, the Secretary of State may by order revoke the legislation.

(4) An order under subsection (3) may include provision for the order to have effect from a date earlier than that on which it is made; but—

(a) such a provision does not affect any rights or liabilities acquired or incurred before the date on which the order is made, and

(b) no person is to be guilty of an offence merely because of such a provision.

(5) The Secretary of State may make an order containing provision such as is specified in subsection (6) where—

(a) an international obligation is an obligation to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise), and

(b) the quantity relates to the United Kingdom (or to an area including the United Kingdom or to an area consisting of a part of the United Kingdom which includes [F19 the whole or part of Wales or of the Welsh zone]).

(6) The provision referred to in subsection (5) is provision for the achievement by the Welsh Ministers (in the exercise of their functions) of so much of the result to be achieved under the international obligation as is specified in the order.

(7) The order may specify the time by which any part of the result to be achieved by the Welsh Ministers is to be achieved.

(8) Where an order under subsection (5) is in force in relation to an international obligation, references to the international obligation in subsections (1) to (3) are to an obligation to achieve so much of the result to be achieved under the international obligation as is specified in the order by the time or times so specified.

(9) No order is to be made by the Secretary of State under subsection (2), (3) or (5) unless the Secretary of State has consulted the Welsh Ministers.

(10) An order under this section must state the reasons for making it.

(11) A statutory instrument containing—

(a) subject to subsection (12), an order under subsection (1), or

(b) an order under subsection (5),

is (unless a draft of the statutory instrument has been approved by a resolution of each House of Parliament) subject to annulment in pursuance of a resolution of either House of Parliament.

(12) A statutory instrument containing only an order under subsection (1) revoking a previous order under that subsection—

(a) is not subject to annulment in pursuance of a resolution of either House of Parliament, but

(b) is to be laid before Parliament.

(13) No order is to be made under subsection (2) or (3) unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.

(14) Subsections (1), (2) and (3) apply to the First Minister and the Counsel General as to the Welsh Ministers; and where subsection (9) operates in relation to an order under subsection (2) or (3) relating to the First Minister or the Counsel General the reference in subsection (9) to the Welsh Ministers is to the First Minister or the Counsel General.

(15) In this section “action” includes making, confirming or approving subordinate legislation and in subsection (2) also includes introducing into the [F12 Senedd] a proposed Assembly Measure or a Bill.

Textual Amendments

F12 Words in Act substituted (6.5.2020) by Senedd and Elections (Wales) Act 2020 (anaw 1), s. 42(2), Sch. 1 para. 2(19) (with Sch. 1 para. 2(11)-(14))

F19 Words in s. 82(5)(b) substituted (12.11.2009 for certain purposes and 12.1.2010 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), ss. 43, 324, Sch. 4 Pt. 2 para. 6(6); S.I. 2009/3345, art. 2, Sch. para. 7

Commencement Information

I3 Ss. 1-94, 97-106 in force immediately after "the 2007 election" by s. 161(1) (subject to s. 161(4)(5))