Government of Wales Act 1998 (c. 38) (c. 38)

(The document as of February, 2008)

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(b) a court of three or more judges of the Court of Session from which there is no appeal to the House of Lords,

shall lie to the Judicial Committee, but only with leave of the court concerned or, failing such leave, with special leave of the Judicial Committee.

Part IV Proceedings in Northern Ireland

Application of Part IV

22 This Part of this Schedule applies in relation to devolution issues in proceedings in Northern Ireland.

Institution of proceedings

23 (1) Proceedings for the determination of a devolution issue may be instituted by the Attorney General for Northern Ireland.

(2) Sub-paragraph (1) does not limit any power to institute proceedings exercisable apart from that sub-paragraph by any person.

Notice of devolution issue

24 (1) A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Attorney General for Northern Ireland and the Assembly (unless a party to the proceedings).

(2) A person to whom notice is given in pursuance of sub-paragraph (1) may take part as a party in the proceedings, so far as they relate to a devolution issue.

Reference of devolution issue to Court of Appeal

25 A court, other than the Court of Appeal in Northern Ireland or the House of Lords, may refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland.

26 A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Court of Appeal in Northern Ireland; and any other tribunal may make such a reference.

References from Court of Appeal to Judicial Committee

27 The Court of Appeal in Northern Ireland may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 25 or 26) to the Judicial Committee.

Appeals from Court of Appeal to Judicial Committee

28 An appeal against a determination of a devolution issue by the Court of Appeal in Northern Ireland on a reference under paragraph 25 or 26 shall lie to the Judicial Committee, but only--

(a) with leave of the Court of Appeal in Northern Ireland, or

(b) failing such leave, with special leave of the Judicial Committee.

Part V General

Proceedings in the House of Lords

29 Any devolution issue which arises in judicial proceedings in the House of Lords shall be referred to the Judicial Committee unless the House considers it more appropriate, having regard to all the circumstances, that they should determine the issue.

Direct references to Judicial Committee

30 (1) The relevant law officer or the Assembly may require any court or tribunal to refer to the Judicial Committee any devolution issue which has arisen in any proceedings before it to which he or it is a party.

(2) In sub-paragraph (1) "the relevant law officer" means--

(a) in relation to proceedings in England and Wales, the Attorney General,

(b) in relation to proceedings in Scotland, the Advocate General for Scotland, and

31 (1) The Attorney General or the Assembly may refer to the Judicial Committee any devolution issue which is not the subject of proceedings.

(2) Where a reference is made under sub-paragraph (1) by the Attorney General in relation to a devolution issue which relates to the proposed exercise of a function by the Assembly--

(a) the Attorney General shall notify the Assembly of that fact, and

(b) the Assembly shall not exercise the function in the manner proposed during the period beginning with the receipt of the notification and ending with the reference being decided or otherwise disposed of.

The Judicial Committee

32 Any decision of the Judicial Committee in proceedings under this Schedule--

(a) shall be stated in open court, and

(b) shall be binding in all legal proceedings (other than proceedings before the Judicial Committee).

33 No member of the Judicial Committee shall sit and act as a member of the Judicial Committee in proceedings under this Schedule unless he holds or has held--

(a) the office of a Lord of Appeal in Ordinary, or

(b) high judicial office as defined in section 25 of the [1876 c. 59.] Appellate Jurisdiction Act 1876 (ignoring for this purpose section 5 of the [1887 c. 70.] Appellate Jurisdiction Act 1887).

34 (1) Her Majesty may by Order in Council--

(a) confer on the Judicial Committee in relation to proceedings under this Schedule such powers as appear to be appropriate,

(b) apply the [1833 c. 41.] Judicial Committee Act 1833 in relation to proceedings under this Schedule with exceptions and modifications, and

(c) make rules for regulating the procedure with respect to proceedings under this Schedule before the Judicial Committee.

(2) An Order in Council under this paragraph may contain any appropriate consequential, incidental, supplementary or transitional provisions or savings (including provisions in the form of amendments or repeals of enactments).

(3) No recommendation shall be made to Her Majesty in Council to make an Order in Council under this paragraph which contains provisions in the form of amendments or repeals of enactments contained in an Act unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, each House of Parliament.

(4) A statutory instrument containing an Order in Council which makes provision falling within sub-paragraph (1)(a) or (b) shall (unless a draft of it has been approved by a resolution of each House of Parliament) be subject to annulment in pursuance of a resolution of either House of Parliament.

Costs

35 (1) A court or tribunal before which any proceedings take place may take account of any additional expense of the kind mentioned in sub-paragraph (3) in deciding any question as to costs or expenses.

(2) In deciding any such question, the court or tribunal may award the whole or part of the additional expense as costs or expenses to the party who incurred it (whatever the decision on the devolution issue).

(3) The additional expense is any additional expense which the court or tribunal considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of paragraph 5, 14 or 24.

Procedure of courts and tribunals

36 Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this Schedule including, in particular, provision--

(a) for prescribing the stage in the proceedings at which a devolution issue is to be raised or referred,

(b) for the staying or sisting of proceedings for the purpose of any proceedings under this Schedule, and

References to be for decision

37 Any function conferred by this Schedule to refer a devolution issue to a court shall be construed as a function of referring the issue to the court for decision.

Section 111.

SCHEDULE 9 Welsh Administration Ombudsman

Part I The Ombudsman

Appointment

1 (1) The Welsh Administration Ombudsman shall be appointed by Her Majesty.

(2) Subject to sub-paragraphs (3) and (4), the Welsh Administration Ombudsman shall hold office until the end of the year of service in which he attains the age of 65.

(3) Her Majesty may relieve the Welsh Administration Ombudsman of office before the end of that year of service--

(a) at his request, or

(b) on Her Majesty being satisfied that he is incapable for medical reasons of performing the duties of his office and of requesting to be relieved of it.

(4) Her Majesty may remove the Welsh Administration Ombudsman from office before the end of the year of service in which he attains the age of 65 if, on the ground of misbehaviour, the Secretary of State recommends that Her Majesty should do so; but the Secretary of State shall not so recommend without consulting the Assembly.

Status

2 (1) The person for the time being holding the office of Welsh Administration Ombudsman shall by the name of that office be a corporation sole.

(2) The Welsh Administration Ombudsman shall be regarded as holding office under Her Majesty and as exercising his functions on behalf of the Crown.

(3) Service as the Welsh Administration Ombudsman shall not be service in Her Majesty's Home Civil Service but he shall be taken to be a Crown servant for the purposes of the [1989 c. 6.] Official Secrets Act 1989.

Acting Welsh Administration Ombudsman

3 (1) Where the office of Welsh Administration Ombudsman becomes vacant, Her Majesty may, at any time during the period of twelve months beginning with the date on which the vacancy arose, appoint a person to act as the Welsh Administration Ombudsman.

(2) Subject to sub-paragraphs (3) to (5), an acting Welsh Administration Ombudsman shall hold office in accordance with the terms of his appointment.

(3) An acting Welsh Administration Ombudsman shall not hold office after--

(a) the appointment of a new Welsh Administration Ombudsman, or

(b) the end of the period of twelve months beginning with the date on which the vacancy arose,

whichever occurs first.

(4) Her Majesty may at any time relieve an acting Welsh Administration Ombudsman of office--

(a) at his request, or

(b) on Her Majesty being satisfied that he is incapable for medical reasons of performing the duties of his office and of requesting to be relieved of it.

(5) Her Majesty may remove an acting Welsh Administration Ombudsman from office at any time if, on the ground of misbehaviour, the Secretary of State recommends that Her Majesty should do so; but the Secretary of State shall not so recommend without consulting the Assembly.

(6) A person appointed under this paragraph shall, while he holds office, be regarded for all purposes (except those of paragraph 1 and this paragraph) as the Welsh Administration Ombudsman.

Remuneration

4 (1) The Assembly shall--

(a) pay the Welsh Administration Ombudsman such salary and any such allowances, and

(b) make any such payments towards the provision of superannuation benefits for or in respect of him,

as may be provided for by or under the terms of his appointment.

(2) But where a person is both Parliamentary Commissioner for Administration and Welsh Administration Ombudsman he shall not be entitled to any salary as Welsh Administration Ombudsman.

(3) The Assembly shall pay to or in respect of a person who has ceased to hold office as Welsh Administration Ombudsman such amounts (if any) by way of--

(a) pension or gratuities, or

(b) provision for those benefits,

as may have been provided for by or under the terms of his appointment.

(4) In Schedule 1 to the [1972 c. 11.] Superannuation Act 1972 (offices etc. to which section 1 of that Act applies), in the list of "Offices" insert--

" Welsh Administration Ombudsman. "

(5) The Assembly shall pay to the Minister for the Civil Service, at such times as he may direct, such sums as he may determine in respect of any increase attributable to sub-paragraph (4) in the sums payable out of money provided by Parliament under the [1972 c. 11.] Superannuation Act 1972.

Staff and advisers

5 (1) The Welsh Administration Ombudsman may appoint such staff as he considers necessary for assisting him in the exercise of his functions.

(2) The Welsh Administration Ombudsman shall include among his staff such persons having a command of the Welsh language as he considers are needed to enable him to investigate complaints in Welsh.

(3) Service as a member of the staff of the Welsh Administration Ombudsman shall be service in Her Majesty's Home Civil Service.

(4) The Assembly shall pay to the Minister for the Civil Service, at such times as he may direct, such sums as he may determine in respect of any increase attributable to sub-paragraph (3) in the sums payable out of money provided by Parliament under the [1972 c. 11.] Superannuation Act 1972.

(5) Any function of the Welsh Administration Ombudsman may be exercised by--

(a) a member of his staff,

(b) a member of the staff of the Health Service Commissioner for Wales, or

(c) an officer of the Parliamentary Commissioner for Administration or of either of the other Health Service Commissioners,

if authorised by the Welsh Administration Ombudsman for that purpose; and references in any enactment to a member of the staff of the Welsh Administration Ombudsman include any person exercising any function of his by virtue of paragraph (b) or (c).

(6) To assist him in the exercise of his functions the Welsh Administration Ombudsman may obtain advice from any person who, in his opinion, is qualified to give it.

(7) The Welsh Administration Ombudsman may pay to any person from whom he obtains advice under sub-paragraph (6) any such fees or allowances as he may determine.

(8) No arrangements shall be made--

(a) for any of the functions of the Welsh Administration Ombudsman or of the Assembly to be exercised by the other or by a member of the other's staff, or

(b) for the provision of any administrative, professional or technical services by the Welsh Administration Ombudsman or the Assembly for the other.

Reports

6 (1) The Welsh Administration Ombudsman--

(a) shall annually prepare and lay before the Assembly a general report on the performance of his functions, and

(b) may from time to time prepare and lay before the Assembly such other reports with respect to his functions as he thinks fit.

(2) The Assembly shall, and the Welsh Administration Ombudsman may, publish reports laid before the Assembly under this paragraph.

Expenses

7 (1) The expenses of the Welsh Administration Ombudsman shall, so far as they cannot be met out of income received by him, be met by the Assembly.

(2) Those expenses include any sums payable by the Welsh Administration Ombudsman in consequence of a breach, in the course of the performance of any of his functions, of any contractual or other duty (whether that breach occurs by reason of his act or omission or that of a member of his staff or any other person assisting him in the exercise of his functions).

Estimates

8 (1) For each financial year after the first financial year of the Assembly, the Welsh Administration Ombudsman shall prepare, and submit to the executive committee, an estimate of the income and expenses of his office.

(2) Each such estimate shall be submitted to the executive committee at least five months before the beginning of the financial year to which it relates.

(3) The executive committee shall examine each such estimate submitted to it and, after having done so, shall lay the estimate before the Assembly with any such modifications as the committee thinks fit.

(4) Where the executive committee proposes to lay such an estimate before the Assembly with modifications, the committee shall first consult the Secretary of State and have regard to any advice which he may give.

Accounts

9 (1) The Welsh Administration Ombudsman shall keep proper accounting records.

(2) The Welsh Administration Ombudsman shall, for each financial year, prepare accounts in accordance with directions given to him by the Treasury.

(3) The directions which the Treasury may give under sub-paragraph (2) include, in particular, directions as to--

(a) the information to be contained in the accounts and the manner in which it is to be presented,

(b) the methods and principles in accordance with which the accounts are to be prepared, and

Audit

10 (1) The accounts prepared by the Welsh Administration Ombudsman for any financial year shall be submitted by him to the Auditor General for Wales no later than five months after the end of that financial year.

(2) The Auditor General for Wales shall--

(a) examine and certify any accounts submitted to him under this paragraph, and

(b) no later than four months after the accounts are submitted to him, lay before the Assembly a copy of them as certified by him together with his report on them.

(3) In examining any accounts submitted to him under this paragraph, the Auditor General for Wales shall, in particular, satisfy himself that the expenditure to which the accounts relate has been incurred lawfully and in accordance with the authority which governs it.

Accounting officer

11 (1) The accounting officer for the Office of the Welsh Administration Ombudsman shall be the Welsh Administration Ombudsman.

(2) But where--

(a) the Welsh Administration Ombudsman is incapable of discharging his responsibilities as accounting officer, or

(b) the office of Welsh Administration Ombudsman is vacant (and there is no acting Welsh Administration Ombudsman),

the Treasury may designate a member of the Welsh Administration Ombudsman's staff to be the accounting officer for so long as paragraph (a) or (b) applies.

(3) The accounting officer for the Office of the Welsh Administration Ombudsman shall have, in relation to the accounts of the Welsh Administration Ombudsman and the finances of the Office of the Welsh Administration Ombudsman, the responsibilities which are from time to time specified by the Treasury.

(4) In this paragraph references to responsibilities include in particular--

(a) responsibilities in relation to the signing of accounts,

(b) responsibilities for the propriety and regularity of the finances of the Office of the Welsh Administration Ombudsman, and

(c) responsibilities for the economy, efficiency and effectiveness with which the resources of the Office of the Welsh Administration Ombudsman are used.

(5) The responsibilities which may be specified under this paragraph include responsibilities owed to--

(a) the Assembly, the executive committee or the Audit Committee, or

(b) the House of Commons or its Committee of Public Accounts.

(6) If requested to do so by the House of Commons Committee of Public Accounts, the Audit Committee may--

(a) on behalf of the Committee of Public Accounts take evidence from the accounting officer for the Office of the Welsh Administration Ombudsman, and

(b) report to the Committee of Public Accounts and transmit to that Committee any evidence so taken.

(7) In this paragraph and paragraphs 12 and 13 "the Office of the Welsh Administration Ombudsman" means the Welsh Administration Ombudsman and the members of his staff.

Examinations into use of resources

12 (1) The Auditor General for Wales may carry out examinations into the economy, efficiency and effectiveness with which the Welsh Administration Ombudsman has used the resources of the Office of the Welsh Administration Ombudsman in discharging his functions.

(2) Sub-paragraph (1) shall not be construed as entitling the Auditor General for Wales to question the merits of the policy objectives of the Welsh Administration Ombudsman.

(3) In determining how to exercise his functions under this paragraph, the Auditor General for Wales shall take into account the views of the Audit Committee as to the examinations which he should carry out under this paragraph.

(4) The Auditor General for Wales may lay before the Assembly a report of the results of any examination carried out by him under this paragraph.

(5) The Auditor General for Wales and the Comptroller and Auditor General may co-operate with, and give assistance to, each other in connection with the carrying out of examinations in respect of the Welsh Administration Ombudsman under this paragraph or section 7 of the [1983 c. 44.] National Audit Act 1983 (economy etc. examinations).

Examinations by the Comptroller and Auditor General

13 (1) For the purpose of enabling him to carry out examinations into, and report to Parliament on, the finances of the Office of the Welsh Administration Ombudsman, the Comptroller and Auditor General--

(a) shall have a right of access at all reasonable times to all such documents in the custody or under the control of the Welsh Administration Ombudsman, or of the Auditor General for Wales, as he may reasonably require for that purpose, and

(b) shall be entitled to require from any person holding or accountable for any of those documents any assistance, information or explanation which he reasonably thinks necessary for that purpose.

(2) The Comptroller and Auditor General shall--

(a) consult the Auditor General for Wales, and

(b) take into account any relevant work done or being done by the Auditor General for Wales,

before he acts in reliance on sub-paragraph (1) or carries out an examination in respect of the Welsh Administration Ombudsman under section 7 of the [1983 c. 44.] National Audit Act 1983 (economy etc. examinations).

Part II Investigation of complaints

Bodies subject to investigation

14 (1) The bodies subject to investigation by the Welsh Administration Ombudsman are--

(a) the Assembly, and

(b) subject to any notes in paragraph 15(1), the bodies listed in sub-paragraph (2).

(2) The bodies referred to in sub-paragraph (1) are--

(a) the Arts Council of Wales,

(b) the Countryside Council for Wales,

(d) the Forestry Commissioners,

(e) the Office of Her Majesty's Chief Inspector of Schools in Wales,

(f) the Sports Council for Wales,

(g) urban development corporations established for urban development areas wholly in Wales,

(h) the Wales Tourist Board,

(i) the Welsh Development Agency, and

(j) the Welsh Language Board.

(3) Subject to paragraph 16, the Assembly may by order amend sub-paragraph (2) by--

(a) adding any body,

(b) omitting any body, or

(4) For the purposes of this paragraph and paragraphs 15 and 16 references to a body include an unincorporated body (as well as a body corporate); and references in this Schedule to a body subject to investigation by the Welsh Administration Ombudsman shall be construed accordingly.

(5) References in the following provisions of this Schedule to action taken in the exercise of functions of a body subject to investigation by the Welsh Administration Ombudsman include action taken in the exercise of any functions of--

(a) any of its members, or

(b) any of its officers or members of its staff.

15 (1) The notes referred to in paragraph 14(1)(b) are--

1 In the case of a body which has functions exercisable otherwise than in relation to Wales (as well as in relation to Wales or a part of Wales) no investigation may be conducted by the Welsh Administration Ombudsman in respect of action in connection with the exercise of the body's functions otherwise than in relation to Wales.

2 In the case of the Environment Agency no investigation may be conducted by the Welsh Administration Ombudsman in respect of action in connection with the exercise of its flood defence functions (within the meaning of the [1991 c. 57.] Water Resources Act 1991).

3 In the case of an urban development corporation no investigation may be conducted by the Welsh Administration Ombudsman in respect of action in connection with the exercise of its functions in relation to town and country planning.

(2) Subject to paragraph 16, the Assembly may by order amend sub-paragraph (1) by--

(a) adding any note,

(b) omitting any note, or

(3) If and to the extent that a function is exercisable in relation to the Welsh language or any other aspect of Welsh culture it shall be regarded for the purposes of this paragraph and paragraph 16 as exercisable in relation to Wales.

16 (1) An order under paragraph 14(3) may only add a body to paragraph 14(2) if--

(a) the body has functions exercisable in relation to Wales or a part of Wales (whether or not they are also exercisable otherwise than in relation to Wales),

(b) some or all of those functions are in a field in which the Assembly has functions, and

(2) A body falls within this sub-paragraph if--

(a) it is established under an enactment or by virtue of Her Majesty's prerogative or is established in any other way by a Minister of the Crown or government department or by the Assembly,

(b) at least half of its expenditure on the exercise of functions in relation to Wales (or, where its functions relate only to a part of Wales, in relation to the part of Wales to which they relate) is met directly from payments made by the Assembly, and

(c) it is wholly or partly constituted by appointment made by Her Majesty, a Minister of the Crown or government department or the Assembly.

(3) An order under paragraph 14(3) shall not add to paragraph 14(2) a body whose sole activity is, or whose main activities are, included among any one or more of the following--

(a) the provision of education,

(b) the development of curricula, the conduct of examinations or the validation of educational courses,

(d) the control of entry to any profession or the regulation of the conduct of members of any profession, and

(e) the investigation of complaints by members of the public regarding the actions of any person or body or the supervision or review of, or of steps taken following, such an investigation,

or a body operating in an exclusively or predominantly commercial manner or carrying on under national ownership an industry or undertaking or part of an industry or undertaking.

(4) The Assembly may not make an order under paragraph 15(2) if the result would be that the Welsh Administration Ombudsman could investigate action in connection with the exercise of a body's functions otherwise than in relation to Wales.

(5) In the case of a body which has functions exercisable in a field in which the Assembly does not have functions (as well as in a field in which it does)--

(a) where the Assembly by order under paragraph 14(3) adds the body to paragraph 14(2) it shall (by order under paragraph 15(2)) add to paragraph 15(1) a note relating to the body, and

(b) the Assembly may not make an order under paragraph 15(2) if the result would be that the Welsh Administration Ombudsman could investigate action in connection with the exercise of the body's functions in a field in which the Assembly does not have functions.

(6) In the case of a body which is an authority to which the [1967 c. 13.] Parliamentary Commissioner Act 1967 applies--

(a) where the Assembly by order under paragraph 14(3) adds the body to paragraph 14(2) it shall (by order under paragraph 15(2)) add to paragraph 15(1) a note relating to the body, and

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