The National Assembly for Wales (Legislative Competence) (Welsh Language) Order 2010

Statutory Instruments

2010 No. 245

Constitutional Law

Devolution, Wales

The National Assembly for Wales (Legislative Competence) (Welsh Language) Order 2010

Made

10th February 2010

Coming into force in accordance with Article 1

At the Court at Buckingham Palace, the 10th day of February 2010

Present,

The Queen’s Most Excellent Majesty in Council

In accordance with section 95(5) of the Government of Wales Act 2006(1), a draft of this Order has been laid before, and approved by resolution of, the National Assembly for Wales and each House of Parliament.

Accordingly, Her Majesty, in pursuance of section 95(1) and (3) of the Government of Wales Act 2006, is pleased, by and with the advice of Her Privy Council, to order as follows:-

Citation and commencement

1.—(1) This Order may be cited as the National Assembly for Wales (Legislative Competence) (Welsh Language) Order 2010.

(2) This Order shall come into force on the day after the day on which it is made.

(3) In this Order “the 2006 Act” means the Government of Wales Act 2006.

Amendments to the Government of Wales Act 2006

2.—(1) Section 94 of the 2006 Act is modified in accordance with this article.

(2) Paragraph (b) of subsection (6) does not prevent the repeal of any provision of the Welsh Language Act 1993(2) from having the same extent as the repealed provision.

3.—(1) Part 1 of Schedule 5 to the 2006 Act is amended in accordance with this article.

(2) In field 20 (Welsh language), insert—

“Matter 20.1

Promoting or facilitating the use of the Welsh language; and the treatment of the Welsh and English languages on the basis of equality.

This matter does not include the use of the Welsh language in courts.

This matter does not include imposing duties on persons other than the following—

(a) public authorities;

(b) persons providing services to the public under an agreement, or in accordance with arrangements, made with a public authority;

(c) persons providing services to the public established by an enactment;

(d) persons established by prerogative instrument—

(i) to advance learning and knowledge by teaching or research or by developing or awarding qualifications;

(ii) to collect, preserve or provide access to recorded knowledge or to objects and things which further understanding;

(iii) to support, improve, promote or provide access to heritage, culture, sport or recreational activities;

(iv) engaged in promoting a wider knowledge and representing the interests of Wales to other countries;

(v) engaged in central banking;

(e) persons upon whom functions of providing services to the public are conferred or imposed by an enactment;

(f) persons providing services to the public who receive public money amounting to £400,000 or more in a financial year;

(g) persons overseeing the regulation of a profession, industry or other similar sphere of activity;

(h) providers of social housing;

(i) persons providing the public with the following kinds of services or with other services which relate to any of those services—

(i) gas, water or electricity services (including supply or distribution);

(ii) sewerage services (including disposal of sewage);

(iii) postal services and post offices;

(iv) telecommunications services;

(v) education, training (where the provider receives public money for its provision), or career guidance, and services to encourage, enable or assist participation in education, training or career guidance;

(vi) bus and railway services;

(vii) services to develop or award educational or vocational qualifications;

(j) persons opting or agreeing to be subject to the imposition of the duties.

With regard to imposing duties in relation to paragraph (b), this matter only includes duties in respect of services to the public provided under an agreement, or in accordance with arrangements, made with a public authority.

A person who receives public money amounting to £400,000 or more in a financial year does not fall within paragraph (f) unless—

(a) that person also received public money in a previous financial year, or

(b) a decision has been made that that person will receive public money in a subsequent financial year.

With regard to imposing duties in relation to paragraph (i)—

(a) this matter only includes duties in respect of the services and the other related services mentioned, and

(b) in respect of the related services, this matter does not include the provision of related services in a shop, other than post office counter services and the sale of tickets or provision of timetables for bus and railway services.

This matter does not include imposing duties about broadcasting.

This matter does not include imposing duties on a person (other than on a Welsh language authority) unless there is a means for that person to challenge those duties, as they apply to that person, on grounds of reasonableness and proportionality.

Matter 20.2

Provision about or in connection with the freedom of persons wishing to use the Welsh language to do so with one another (including any limitations upon it).

Interpretation of this field

In this field—

“broadcasting” means the commissioning, production, scheduling, transmission or distribution of programmes (including advertisements, subtitles, continuity announcements and teletext), access services, interactivity, online content and other output of a similar nature for television, radio, the internet or other online or wireless platforms;

“bus service” means a scheduled service, by public service vehicle (within the meaning of section 1 of the Public Passenger Vehicles Act 1981(3)), for the carriage of passengers at separate fares, other than a service—

(a) for which the whole capacity of the vehicle has been purchased by a charterer for the charterer’s own use or for resale;

(b) which is a journey or trip organised privately by any person acting independently of the vehicle operator; or

(c) on which the passengers travel together on a journey, with or without breaks and whether or not on the same day, from one or more places to one or more places and back;

“enactment” includes any future enactment;

“shop” means any premises where the sale of goods is the principal trade or business carried on;

“postal services” means the service of conveying letters, parcels, packets or other articles from one place to another by post and the incidental services of receiving, collecting, sorting and delivering such articles;

“public authority” means each public authority within the meaning of section 6 of the Human Rights Act 1998(4);

“public money” means—

(a) moneys made available directly or indirectly by—

(i) the National Assembly for Wales;

(ii) the Welsh Ministers;

(iii) Parliament;

(iv) Ministers of the Crown; or

(v) an institution of the European Communities;

(b) moneys provided by virtue of any enactment;

“telecommunications service” means any service that consists of providing access to, or facilities for making use of, any system which exists (whether wholly or partly in the United Kingdom or elsewhere) for the purpose of facilitating the transmission of communications by any means involving the use of electrical, magnetic or electro-magnetic energy (including the apparatus comprised in the system), but does not include broadcasting, radio, or television;

“Welsh language authority” means a person upon whom an enactment confers or imposes functions of—

(a) imposing or enforcing on other persons duties relating to the Welsh language,

(b) determining the duties relating to the Welsh language that are imposed on other persons, or

(c) deciding challenges to the duties relating to the Welsh language that are imposed on other persons.”

4.—(1) Part 2 of Schedule 5 to the 2006 Act is modified in accordance with this article.

(2) For paragraph 6(2) substitute—

“(2)   Sub-paragraph (1) does not apply to—

(a) sections 20, 22, 24, 35(1), 36(1) to (5) and (7) to (11), 53, 54, 78 and 156(2) to (5); or

(b) paragraph 8(3) of Schedule 2.”

5.—(1) Part 3 of Schedule 5 to the 2006 Act is modified in accordance with this article.

(2) Renumber the existing paragraph 7 as sub-paragraph (1) of that paragraph, and after it insert the following new sub-paragraph—

“(2) Part 2 does not prevent a provision of an Assembly Measure relating to matter 20.1 or 20.2 of Part 1, conferring or imposing, or conferring power by subordinate legislation to confer or impose, any function on a Minister of the Crown if the Secretary of State consents to the provision, but functions so conferred or imposed may not be made enforceable against Ministers of the Crown by means of criminal offences.”

Judith Simpson

Clerk of the Privy Council

EXPLANATORY NOTE

(This note is not part of the Order)

This Order amends the Government of Wales Act 2006 (“the 2006 Act”). The Order extends the legislative competence of the National Assembly for Wales to make laws known as Measures of the National Assembly for Wales (referred to in the 2006 Act as “Assembly Measures”). The legislative competence conferred by this Order is subject to general limitations on the exercise of that legislative competence, which apply by virtue of section 94 of, and Schedule 5 to, the 2006 Act (as amended by this Order).

Article 2 modifies the effect of section 94(6)(b) of the 2006 Act. This ensures that any future repeal of provisions of the Welsh Language Act 1993 will not be prevented from having the same extent as the provisions repealed.

Article 3 inserts matters 20.1 and 20.2 as well as interpretation provisions into field 20 (Welsh Language) of Part 1 of Schedule 5 to the 2006 Act.

Matter 20.1 is about promoting or facilitating the use of the Welsh language; and the treatment of the Welsh and English languages on the basis of equality, but does not include the use of the Welsh language in courts.

This matter does not include imposing duties on persons other than—

(a) public authorities;

(b) persons who provide services to the public under agreements, or in accordance with arrangements, made with public authorities;

(c) persons providing services to the public and established by an enactment;

(d) persons established by prerogative instrument—

(i) to advance learning and knowledge by teaching or research or by developing or awarding qualifications;

(ii) to collect, preserve or provide access to recorded knowledge or to objects and things which further understanding;

(iii) to support, improve, promote or provide access to heritage, culture, sport or recreational activities;

(iv) engaged in promoting a wider knowledge and representing the interests of Wales to other countries;

(v) engaged in central banking.

(e) persons upon whom functions of providing services to the public are conferred or imposed by an enactment;

(f) persons providing services to the public who receive public money amounting to £400,000 or more in a financial year;

(g) persons who oversee the regulation of a profession, industry or other similar sphere of activity;

(h) providers of social housing;

(i) persons providing the public with the following services, or connected services—

(i) gas, water or electricity services (which includes supply or distribution);

(ii) sewerage services (which includes disposing of sewage);

(iii) postal services and post offices;

(iv) telecommunications services;

(v) education, training (where the provider receives public money for its provision), or career guidance, and services that encourage, enable or assist participation in education, training or career guidance;

(vi) bus and railway services;

(vii) services to develop or award educational or vocational qualifications;

(j) persons who opt or agree to be subject to the imposition of duties.

Duties imposed in relation to paragraph (b) are limited to duties in respect of services to the public that are provided under an agreement or in accordance with arrangements made with a public authority.

A person who receives public money amounting to £400,000 or more in a financial year does not fall within paragraph (f) unless—

(k) that person also received public money in a previous financial year, or

(l) a decision has been made that that person will receive public money in a subsequent financial year.

Duties imposed in relation to paragraph (i)—

(m) are limited to duties in respect of the services and the other related services mentioned, and

(n) in respect of the related services, do not include the provision of related services in a shop, other than post office counter services and the sale of tickets or provision of timetables for bus and railway services.

Matter 20.1 does not include imposing duties about broadcasting.

Matter 20.1 does not include imposing duties on a person (other than on a Welsh language authority) unless there is a means for that person to challenge those duties, as they apply to that person, on grounds of reasonableness and proportionality.

Matter 20.2 is about the freedom of persons who wish to use the Welsh language to do so with one another, and includes any limitations upon that freedom.

Article 4 inserts a provision that modifies paragraph 6(2) of Part 2 of Schedule 5 to the 2006 Act to add sections 35(1), 78 and paragraph 8(3) of Schedule 2 to the list of sections of the 2006 Act which may be modified by Assembly Measure or by subordinate legislation made under a Measure.

Article 5 inserts provisions that modify paragraph 7 of Part 3 of Schedule 5 to the 2006 Act. Paragraph 7 is renumbered as 7(1) and a new sub-paragraph 7(2) is inserted. The new sub-paragraph 7(2) provides that Part 2 will not prevent a provision of an Assembly Measure relating to matters 20.1 or 20.2 from conferring or imposing, or conferring power by subordinate legislation to confer or impose, any function on a Minister of the Crown if the Secretary of State consents to that provision, but also provides that such functions may not be enforced against Ministers of the Crown by means of criminal offences.

A full regulatory impact assessment has not been carried out since the effect of this Order is only to confer competence on the National Assembly for Wales to legislate.

(1)

2006 c.32.

(2)

1993 c.38.

(3)

1981 c.14.

(4)

1998 c.42.