Localism Bill — Report (5th Day) — 10 Oct 2011 at 22:09

Clause 22 : Pay policy statements

Amendment 190

Tabled by Lord Beecham

190: Clause 22, page 26, line 13, at end insert-

"( ) The statement may include the approach that the relevant authority has adopted for selecting information on pay policy from a provider, including any potential provider, of goods and services."

Amendment 195ZAHA (to Amendment 195ZAH) not moved.

Amendment 195ZAH agreed.

Amendment 195ZAJ

Moved by Earl Attlee

195ZAJ: After Clause 31, insert the following new Clause-

"Establishment of independent panel

(1) This section applies where-

(a) an EU financial sanction to which this Part applies has been imposed by the Court of Justice; and

(b) at least one public authority has been designated under section (Designation of public authorities) and the EU financial sanction is one to which the designation applies.

(2) A Minister of the Crown must establish a panel for the purpose of carrying out any functions it may be given by or under any provision of this Part in relation to that EU financial sanction.

(3) The panel must be established before any warning notice is given to a public authority in relation to that EU financial sanction.

(4) The panel is to consist of one or more individuals appointed by a Minister of the Crown who appear to a Minister of the Crown to have suitable qualifications, expertise or experience to carry out their duties.

(5) A Minister of the Crown may invite nominations for appointment to the panel from such organisations as a Minister of the Crown considers appropriate.

(6) The validity of any acts of the panel are not affected by a vacancy among its members.

(7) A Minister of the Crown may pay to a member of the panel such fees, allowances or expenses as a Minister of the Crown may determine.

(8) A Minister of the Crown may provide such staff, accommodation or other facilities as a Minister of the Crown may consider necessary to enable the panel to carry out its functions."

Amendment 195ZAJ agreed.

Amendment 195ZAK had been withdrawn from the Marshalled List.

Clause 32 : Warning notices

Amendments 195ZAL to 195ZAZC

Moved by Earl Attlee

195ZAL: Clause 32, page 30, line 11, leave out subsection (1) and insert-

"(1) Before a public authority which has been designated under section (Designation of public authorities) can be required to make any payment under this Part in respect of an EU financial sanction to which the designation applies-

(a) a Minister of the Crown must give a warning notice under this section to the public authority;

(b) the procedures set out in the warning notice (with any changes made under subsection (7)) must be followed; and

(c) a Minister of the Crown must determine the matters mentioned in section (Matters to be determined before a final notice is given)(4)."

195ZAM: Clause 32, page 30, line 16, leave out "the Minister" and insert "a Minister of the Crown"

195ZAN: Clause 32, page 30, line 17, leave out from "Justice" to "financial" in line 18 and insert "imposing the EU"

195ZAP: Clause 32, page 30, line 24, leave out "a payment under this Part" and insert "payments under this Part (which may be or include ongoing payments)"

195ZAQ: Clause 32, page 30, line 25, leave out subsections (3) to (5) and insert-

"(3) The warning notice must also-

(a) identify the EU financial sanction to which the notice relates;

(b) specify the total amount of that sanction (see subsection (6C));

(c) if that sanction is or includes a penalty payment, specify the amount and frequency of any periodic payments that fall due from the United Kingdom under the terms of the penalty payment (see subsection (6D));

(d) set out the reasons for making the statement required by subsection (2);

(e) set out the proposed procedures and arrangements for determining the matters mentioned in section (Matters to be determined before a final notice is given)(4) (which may include arrangements for securing that matters arising under the notice are dealt together with matters arising under other warning notices given to other public authorities in respect of the same EU financial sanction);

(f) propose a timetable for those procedures and for any steps to be taken by the panel or a Minister of the Crown before any requirement to make a payment can be imposed on the authority;

(g) invite the authority to make representations to a Minister of the Crown about the matters mentioned in paragraphs (e) and (f);

(h) invite the authority to make representations to the panel (with any supporting evidence) about anything the authority considers relevant to the matters mentioned in section (Matters to be determined before a final notice is given)(4), including its response to any representations made (and any supporting evidence submitted) to the panel -

(i) by a Minister of the Crown or a government department (whether in relation to matters arising from the notice or matters arising from any other warning notice given to another public authority in relation to the same EU financial sanction);

(ii) by another public authority which has been given a warning notice in relation to the same EU financial sanction; or

(iii) by the appropriate national authority in response to an invitation under paragraph (j) included in the notice; and

(j) if the authority has mixed functions, invite the appropriate national authority to make representations about anything contained in or arising from the notice."

195ZAR: Clause 32, page 31, line 14, at end insert "of the Crown giving it"

195ZAS: Clause 32, page 31, line 15, at end insert-

"(6A) Before a Minister of the Crown gives a warning notice to the authority, the Minister of the Crown must consult the panel as to the contents of the notice (including in particular the proposed procedures and timetable mentioned in subsection (3)(e) and (f)).

(6B) If the authority has mixed functions, a Minister of the Crown must-

(a) consult the appropriate national authority before deciding to give a warning notice to the authority; and

(b) give the appropriate national authority a copy of any warning notice the Minister of the Crown decides to give.

(6C) In subsection (3)(b) the "total amount of the sanction" means the sum of the following-

(a) the amount of the lump sum (if any) due from the United Kingdom under the terms of the EU financial sanction (disregarding any amount that falls to be excluded from the lump sum by virtue of section (The EU financial sanctions to which Part 2 applies)(2)); and

(b) the total amount of the periodic payments (if any) which have fallen due from the United Kingdom on or before a day specified in the notice (disregarding any amount that falls to be excluded from any of those payments by virtue of section (The EU financial sanctions to which Part 2 applies)(2);

and the day specified for the purposes of paragraph (b) must be no later than the day on which the warning notice is given to the authority.

(6D) The periodic payments to be taken into account for the purposes of subsection (3)(c) do not include-

(a) any periodic payment taken into account in calculating the total amount of the sanction for the purposes of subsection (3)(b); or

(b) any periodic payment, or any part of a periodic payment, that falls to be excluded from the EU financial sanction by virtue of section (The EU financial sanctions to which Part 2 applies)(2)."

195ZAT: Clause 32, page 31, line 16, leave out "The Minister" and insert "A Minister of the Crown"

195ZAU: Clause 32, page 31, line 17, leave out "(3)(d)(ii)" and insert "(3)(g)"

195ZAV: Clause 32, page 31, line 17, leave out "subsection (3)(b)" and insert "section (Matters to be determined before a final notice is given)(4)"

195ZAX: Clause 32, page 31, line 18, after "authority" insert "-

(a) "

195ZAY: Clause 32, page 31, line 19, leave out "criteria,"

195ZAZ: Clause 32, page 31, line 20, leave out "(3)(b), (c) or (e)." and insert "(3)(e) and (f); and

(b) a copy of the warning notice incorporating those changes.

(7A) A Minister of the Crown must consult the panel before making any changes under subsection (7)."

195ZAZA: Clause 32, Page 31, line 21, leave out "local or"

195ZAZB: Clause 32, Page 31, line 22, leave out "subsection (3)(b)" and insert "section (Matters to be determined before a final notice is given)(4)"

195ZAZC: Clause 32, Page 31, line 24, at end insert-

"(9) In this section and section (Matters to be determined before a final notice is given) "the panel" means the panel established under section (Establishment of independent panel) to deal with the EU financial sanction to which the notice relates."

Amendments 195ZAL to 195ZAZC agreed.

Amendment 195ZAZD

Moved by Earl Attlee

195ZAZD: After Clause 32, Insert the following new Clause-

"Matters to be determined before a final notice is given

(1) This section applies where-

(a) a warning notice has been given to a public authority; and

(b) the panel has considered all representations made to it under the procedures set out in that notice.

(2) The panel must make, to a Minister of the Crown, a report on the matters to which the representations made to the panel relate.

(3) The report-

(a) may be published by the panel in such manner as the panel thinks fit and, if not published by the panel, must be published by the Minister of the Crown to whom it is made in such manner as the Minister of the Crown thinks fit;

(b) must include recommendations as to the determination of the matters mentioned in subsection (4)(a) and (b);

(c) if the authority has made representations to the panel about anything the authority considers relevant to any of the matters mentioned in paragraphs (c) to (e) of subsection (4), must include recommendations as to the determination of the matters mentioned in those paragraphs; and

(d) must include the panel's reasons for any recommendations included in the report.

(4) After having had regard to the report, a Minister of the Crown must determine the following matters-

(a) whether any acts of the authority did cause or contribute to the infraction of EU law concerned and, in relation to any periodic payments mentioned in subsection (3)(c) of section 32, whether those acts have continued and will continue to do so;

(b) the proportion of-

(i) the total amount of the sanction (as specified under subsection (3)(b) of that section), and

(ii) any periodic payments (as specified under subsection (3)(c) of that section),

that, in the light of the acts of the authority which are determined to have had or to be having an effect mentioned in paragraph (a), is to be regarded as reflecting the authority's share of the responsibility for the infraction of EU law concerned or, in relation to any such periodic payments, the continuing infraction of EU law concerned;

(c) whether the authority should be required to make any payment or payments in respect of the EU financial sanction;

(d) if so, what payment or payments the authority should make towards-

(i) the total amount of the sanction specified under subsection (3)(b) of that section; and

(ii) any periodic payments specified under subsection (3)(c) of that section; and

(e) when any such payment or payments should be made.

(5) In determining the matters mentioned in subsection (4)(c), (d) and (e) the Minister of the Crown must have regard to-

(a) the effect on the authority's finances of any amount it may be required to pay and in particular, if the authority has mixed functions, the need to avoid any prejudicial effect on the performance by the authority of its devolved functions;

(b) the determination under subsection (4)(b); and

(c) any other relevant considerations.

(6) Before making a final decision on the matters mentioned in subsection (4)(c), (d) and (e), the Minister of the Crown must invite-

(a) representations from the authority about the potential effect on its finances and, if it has mixed functions, the effect on its devolved functions of any amount it may be required to pay; and

(b) if the authority has mixed functions, representations from the appropriate national authority."

Amendment 195ZAZD agreed.

Clause 33 : EU financial sanction notices

Amendments 195ZAZE and 195ZAZF

Moved by Earl Attlee

195ZAZE: Clause 33, Page 31, line 26, leave out from "give" to end of line 30 and insert "a final notice to a public authority only if a Minister of the Crown has decided in accordance with section (Matters to be determined before a final notice is given) to impose a requirement under this Part on the authority."

195ZAZF: Clause 33, Page 31, line 31, leave out subsections (2) to (6) and insert-

"(2) The final notice must-

(a) identify the EU financial sanction to which the notice relates;

(b) specify the total amount of the sanction (see subsection (3)) and, where relevant, the amount and frequency of any future periodic payments (see subsection (4));

(c) describe the acts of the authority that a Minister of the Crown has under section (Matters to be determined before a final notice is given)(4) determined-

(i) caused or contributed to the infraction of EU law concerned, in relation to the total amount of the sanction; or

(ii) are causing or contributing to the continuing infraction of EU law concerned, in relation to any other periodic payments due from the United Kingdom;

and set out the reasons for that determination;

(d) summarise the other determinations made by a Minister of the Crown under section (Matters to be determined before a final notice is given)(4) and set out the reasons for making them;

(e) specify the amount required to be paid by the authority towards the total amount of the sanction and when it is to be paid (and if it is to be paid in instalments, the instalments and the date on which they become payable);

(f) specify the amount to be paid towards any periodic payment that falls due from the United Kingdom and the time when that amount is to be paid (or, if the notice so provides the time when two or more such amounts are to be paid);

(g) specify how and to whom payments are to be made.

(3) In subsection (2)(b), (c) and (e) the "total amount of the sanction" means the sum of the following-

(a) the amount of the lump sum (if any) due from the United Kingdom under the terms of the EU financial sanction (disregarding any amount that falls to be excluded from the lump sum by virtue of section (The EU financial sanctions to which Part 2 applies)(2)); and

(b) the total amount of the periodic payments (if any) which have fallen due from the United Kingdom on or before a day specified in the final notice (disregarding any amount that falls to be excluded from any of those payments by virtue of section (The EU financial sanctions to which Part 2 applies)(2));

and the day specified for the purposes of paragraph (b) must be no later than the day on which the final notice is given to the authority.

(4) In subsection (2)(b) "future periodic payments" means periodic payments other than-

(a) any periodic payment taken into account in calculating the total amount of the sanction; or

(b) any periodic payment, or any part of a periodic payment, that falls to be excluded from the EU financial sanction by virtue of section (The EU financial sanctions to which Part 2 applies)(2).

(5) The requirement to make payments towards periodic payments falling due from the United Kingdom after the notice is given continues so long as those periodic payments continue to fall due, unless a Minister of the Crown gives the authority a notice under this subsection terminating the requirement or varying it so as to make it less onerous for the authority.

(6) A notice under subsection (5) may be given, either on the application of the authority or without such an application, where a Minister of the Crown considers it appropriate in the light of a change in the circumstances which applied when the final notice was given or when it was last varied (as the case may be).

(7) A Minister of the Crown may-

(a) consult the panel, or refer any matter relating to the possible termination or variation of the requirement for its advice or recommendations;

(b) invite the authority to make representations; and

(c) if the authority has mixed functions, invite the appropriate national authority to make representations,

before deciding whether to terminate or vary the requirement mentioned in subsection (5).

(8) If the authority makes an application under subsection (6) a Minister of the Crown may by notice to the authority suspend the requirement until further notice (but this does not affect the liability to make any payment once the suspension is ended, unless the final notice is varied to have that effect)."

Amendments 195ZAZE and 195ZAZF agreed.

Clause 34 : Further warning notices

Amendment 195ZAZG

Moved by Earl Attlee

195ZAZG: Clause 34, Leave out Clause 34

Amendment 195ZAZG agreed.

Clause 35 : Further EU financial sanction notices

Amendment 195ZAZH

Moved by Earl Attlee

195ZAZH: Clause 35, Leave out Clause 35

Amendment 195ZAZH agreed.

Clause 36 : Meaning of "local or public authority"

Amendment 195ZAZJ

Moved by Earl Attlee

195ZAZJ: Clause 36, Leave out Clause 36

Amendment 195ZAZJ agreed.

Clause 37 : Interpretation of Part: general

Amendments 195ZAZK to 195ZAZM

Moved by Earl Attlee

195ZAZK: Clause 37, Page 34, leave out lines 16 to 23 and insert-

""the appropriate national authority", in relation to a public authority with mixed functions, has the meaning given by section (Meaning of "public authority" and related terms)(8);

"Article 260(2) proceedings" has the meaning given by section 31(8)(c);

"Court of Justice" means the Court of Justice of the European Union;

"EU financial sanction" has the meaning given by section 31(8)(a);

"final notice" means a notice under section 33;

"functions", "non-devolved functions" and "devolved functions" are to be construed in accordance with section (Meaning of "public authority" and related terms);

"infraction of EU law", in relation to an EU financial sanction, has the meaning given by section 31(8)(b);"

195ZAZL: Clause 37, Page 34, line 25, at end insert-

""periodic payment", in relation to an EU financial sanction that is or includes a penalty payment, means a payment due under the terms of the penalty payment;

"public authority" has the meaning given in section (Meaning of "public authority" and related terms)(2);

"public authority with mixed functions" has the meaning given by section (Meaning of "public authority" and related terms)(7)."

195ZAZLA: Clause 37, Page 34, line 25, at end insert-

""warning notice" means a notice under section 32."

195ZAZM: Clause 37, Page 34, line 26, leave out subsection (2)

Amendments 195ZAZK to 195ZAZM agreed.

Amendments 195ZAZMZA to 195ZAZMZK

Moved by Earl Attlee

195ZAZMZA: After Clause 37, insert the following new Clause-

"PARTEU fines: Wales

Power to require Welsh public authorities to make payments in respect of certain EU financial sanctions

(1) The Welsh Ministers may, in accordance with the provisions of this Part, require Welsh public authorities to make payments of amounts determined by the Welsh Ministers in respect of an EU financial sanction to which this Part applies.

(2) A requirement to make a payment under this Part-

(a) may only be imposed on a Welsh public authority if-

(i) the authority has been designated under section (Designation of Welsh public authorities); and

(ii) the EU financial sanction concerned is one to which the designation applies; and

(b) must be imposed by a notice given to the authority under section (Final notices) (referred to in this Part as a final notice).

(3) If a final notice is registered in accordance with rules of court or any practice direction, it is enforceable in the same manner as an order of the High Court.

(4) Any sums paid by a Welsh public authority under this Part are to be paid into the Welsh Consolidated Fund.

(5) In this Part-

(a) "EU financial sanction" means a sanction consisting of a lump sum or penalty payment (or both) imposed by the Court of Justice in Article 260(2) proceedings for an infraction of EU law;

(b) "infraction of EU law", in relation to an EU financial sanction, means the failure to comply with a judgment of the Court of Justice given in proceedings under Article 258 or 259 of the Treaty on the Functioning of the European Union; and

(c) "Article 260(2) proceedings" means proceedings under Article 260(2) of that Treaty."

195ZAZMZB: After Clause 37, insert the following new Clause-

"Duty of the Welsh Ministers to issue a policy statement

(1) The Welsh Ministers must publish a statement of policy with respect to-

(a) the designation of Welsh public authorities under section (Designation of Welsh public authorities);

(b) the imposition and variation of requirements to make payments under this Part; and

(c) such other matters relating to the operation of the provisions of this Part as the Welsh Ministers may think appropriate to include in the statement.

(2) The Welsh Ministers may from time to time revise and republish the statement of policy required by this section.

(3) A revised statement of policy may include saving or transitional provisions relating to the continued application for any purpose of any provisions of an earlier published version of the statement.

(4) The Welsh Ministers must consult such persons as the Welsh Ministers consider appropriate before publishing, or revising and republishing, the statement of policy required by this section.

(5) In exercising functions under this Part in relation to an EU financial sanction which has been or may be imposed on the United Kingdom-

(a) the Welsh Ministers, and

(b) a panel established under section (Establishment of independent panel (No.2)),

must have regard to the statement of policy most recently published under this section."

195ZAZMZC: After Clause 37, insert the following new Clause-

"The EU financial sanctions to which Part (EU fines: Wales) applies

(1) This Part applies to an EU financial sanction imposed on the United Kingdom if-

(a) the sanction is imposed after the commencement of this Part, and

(b) the Welsh Ministers certify that this Part applies to the sanction.

(2) If a certificate under subsection (1)-

(a) specifies a part or parts of the EU financial sanction concerned, and

(b) states that this Part applies only to that part, or those parts, of the sanction,

this Part applies to the sanction as if it included only that part or those parts.

(3) A certificate under subsection (1)-

(a) may make specific provision about the application of this Part to any of the following-

(i) the lump sum (if any) paid by the United Kingdom;

(ii) any periodic payment due from the United Kingdom under the terms of the EU financial sanction before the certificate is given; and

(iii) any future periodic payment that may fall due from the United Kingdom under those terms; and

(b) must be given in such form and published in such manner as the Welsh Ministers think fit.

(4) Any provision under subsection (3)(a)(iii) that is made in a certificate under subsection (1) may be varied (including in relation to its effect in relation to any periodic payment that has become due from the United Kingdom since the earlier certificate) by a further certificate under subsection (1)."

195ZAZMZD: After Clause 37, insert the following new Clause-

"Meaning of "Welsh public authority" and related terms

(1) Subsections (2) to (5) define various terms used in this Part.

(2) "Welsh public authority" means-

(a) a council of a county or county borough in Wales; or

(b) any other person or body which has any Welsh devolved functions.

(3) References to functions are to functions of a public nature.

(4) References to Welsh devolved functions are to functions which are exercisable in relation to Wales and could be conferred by provision falling within the legislative competence of the National Assembly for Wales as defined in section 108 of the Government of Wales Act 2006.

(5) The "appropriate national authority", in relation to a Welsh public authority with any functions other than Welsh devolved functions, means the following national authority or authorities (according to whichever one or more of the following paragraphs apply to that Welsh public authority)-

(a) a Minister of the Crown, if the Welsh public authority has any functions which are not devolved functions;

(b) the Scottish Ministers, if the Welsh public authority has any Scottish devolved functions; and

(c) the relevant Northern Ireland Department, if the Welsh public authority has any Northern Ireland devolved functions.

(6) In subsection (5)(a) "devolved functions" means-

(a) Welsh devolved functions;

(b) Scottish devolved functions; or

(c) Northern Ireland devolved functions.

(7) In subsections (5) and (6)-

"Northern Ireland devolved functions" means functions which could be conferred by provision included in an Act of the Northern Ireland Assembly made without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998);

"Scottish devolved functions" means functions the exercise of which would be within devolved competence (within the meaning of section 54 of the Scotland Act 1998)."

195ZAZMZE: After Clause 37, insert the following new Clause-

"Designation of Welsh public authorities

(1) The Welsh Ministers may by order designate a Welsh public authority for the purposes of this Part.

(2) The order must-

(a) specify the Welsh public authority by name;

(b) identify any EU financial sanction to which the designation applies; and

(c) describe the activities of the authority which are covered by the designation.

(3) The order may identify an EU financial sanction for the purposes of subsection (2)(b) by-

(a) specifying an EU financial sanction that has been imposed on the United Kingdom;

(b) specifying any Article 260(2) proceedings that have been commenced and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom in those proceedings;

(c) specifying a judgment of the Court of Justice finding that the United Kingdom has failed to comply with an EU obligation and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom for failing to comply with that judgment; or

(d) specifying or describing any proceedings under Article 258 or 259 of the Treaty on the Functioning of the European Union that have been or may be commenced and providing that the designation is to apply to any EU financial sanction that may be imposed on the United Kingdom for failing to comply with a judgment of the Court of Justice given in those proceedings.

(4) The order may, for the purposes of subsection (3)(d), describe any proceedings under Article 258 or 259 that may be commenced by reference to the subject-matter of-

(a) a Reasoned Opinion addressed to the United Kingdom under Article 258 or 259 (as the case may be); or

(b) any other document sent to the Government of the United Kingdom by the Commission of the European Union or by another member State which gives notice to the Government of the possibility of proceedings being commenced against the United Kingdom.

(5) The activities described for the purposes of subsection (2)(c) must be activities of the Welsh public authority which-

(a) are carried out in the exercise of Welsh devolved functions of the authority; and

(b) take place after the provisions of the order describing the activities come into force.

(6) The following may not be designated under this section-

(a) the National Assembly for Wales;

(b) a Minister of the Crown or a United Kingdom government department;

(c) a member of the Welsh Assembly Government;

(d) a court or tribunal.

(7) Before making an order designating a Welsh public authority the Welsh Ministers must consult-

(a) the authority concerned; and

(b) if the authority concerned has any functions other than Welsh devolved functions, the appropriate national authority.

(8) In sections (Warning notices) to (Final notices) references to "acts", in relation to a Welsh public authority which has been designated under this section, are to acts within a description of activities covered by the designation."

195ZAZMZF: After Clause 37, insert the following new Clause-

"Establishment of independent panel (No. 2)

(1) This section applies where-

(a) an EU financial sanction to which this Part applies has been imposed by the Court of Justice; and

(b) at least one Welsh public authority has been designated under section (Designation of Welsh public authorities) and the EU financial sanction is one to which the designation applies.

(2) The Welsh Ministers must establish a panel for the purpose of carrying out any functions it may be given by or under any provision of this Part in relation to that EU financial sanction.

(3) The panel must be established before any warning notice is given to a Welsh public authority in relation to that EU financial sanction.

(4) The panel is to consist of one or more individuals appointed by the Welsh Ministers who appear to the Welsh Ministers to have suitable qualifications, expertise or experience to carry out their duties.

(5) The Welsh Ministers may invite nominations for appointment to the panel from such organisations as the Welsh Ministers consider appropriate.

(6) The validity of any acts of the panel are not affected by a vacancy among its members.

(7) The Welsh Ministers may pay to a member of the panel such fees, allowances or expenses as the Welsh Ministers may determine.

(8) The Welsh Ministers may provide such staff, accommodation or other facilities as the Welsh Ministers may consider necessary to enable the panel to carry out its functions."

195ZAZMZG: After Clause 37, insert the following new Clause-

"Warning notices

(1) Before a Welsh public authority which has been designated under section (Designation of Welsh public authorities) can be required to make any payment under this Part in respect of an EU financial sanction to which the designation applies-

(a) the Welsh Ministers must give a warning notice under this section to the authority;

(b) the procedures set out in the warning notice (with any changes made under subsection (9)) must be followed; and

(c) the Welsh Ministers must determine the matters mentioned in section (Matters to be determined before a final notice is given (No. 2))(4).

(2) A warning notice is a notice stating that the Welsh Ministers, having regard to the judgment of the Court of Justice imposing the EU financial sanction, believe-

(a) that acts of the authority may have caused or contributed to the infraction of EU law for which the EU financial sanction was imposed; and

(b) that, if acts of the authority did cause or contribute to that infraction of EU law, it would be appropriate to consider requiring the authority to make payments under this Part (which may be or include ongoing payments) in respect of that financial sanction.

(3) The warning notice must also-

(a) identify the EU financial sanction to which the notice relates;

(b) specify the total amount of that sanction (see subsection (7));

(c) if that sanction is or includes a penalty payment, specify the amount and frequency of any periodic payments that fall due from the United Kingdom under the terms of the penalty payment (see subsection (8));

(d) set out the reasons for making the statement required by subsection (2);

(e) set out the proposed procedures and arrangements for determining the matters mentioned in section (Matters to be determined before a final notice is given (No. 2))(4) (which may include arrangements for securing that matters arising under the notice are dealt together with matters arising under other warning notices given to other Welsh public authorities in respect of the same EU financial sanction);

(f) propose a timetable for those procedures and for any steps to be taken by the panel or the Welsh Ministers before any requirement to make a payment can be imposed on the authority;

(g) invite the authority to make representations to the Welsh Ministers about the matters mentioned in paragraphs (e) and (f);

(h) invite the authority to make representations to the panel (with any supporting evidence) about anything the authority considers relevant to the matters mentioned in section (Matters to be determined before a final notice is given (No. 2))(4), including its response to any representations made (and any supporting evidence submitted) to the panel -

(i) by the Welsh Ministers (whether in relation to matters arising from the notice or matters arising from any other warning notice given to another Welsh public authority in relation to the same EU financial sanction);

(ii) by another Welsh public authority which has been given a warning notice in relation to the same EU financial sanction; or

(iii) by the appropriate national authority in response to an invitation under paragraph (j) included in the notice; and

(j) if the authority has any functions other than Welsh devolved functions, invite the appropriate national authority to make representations about anything contained in or arising from the notice.

(4) The warning notice may contain such other information as the Welsh Ministers consider appropriate.

(5) Before giving a warning notice to the authority, the Welsh Ministers must consult the panel as to the contents of the notice (including in particular the proposed procedures and timetable mentioned in subsection (3)(e) and (f)).

(6) If the authority has any functions other than Welsh devolved functions, the Welsh Ministers must-

(a) consult the appropriate national authority before deciding to give a warning notice to the authority; and

(b) give the appropriate national authority a copy of any warning notice the Welsh Ministers decide to give.

(7) In subsection (3)(b) the "total amount of the sanction" means the sum of the following-

(a) the amount of the lump sum (if any) due from the United Kingdom under the terms of the EU financial sanction (disregarding any amount that falls to be excluded from the lump sum by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2)); and

(b) the total amount of the periodic payments (if any) which have fallen due from the United Kingdom on or before a day specified in the notice (disregarding any amount that falls to be excluded from any of those payments by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2));

and the day specified for the purposes of paragraph (b) must be no later than the day on which the warning notice is given to the authority.

(8) The periodic payments to be taken into account for the purposes of subsection (3)(c) do not include-

(a) any periodic payment taken into account in calculating the total amount of the sanction for the purposes of subsection (3)(b); or

(b) any periodic payment, or any part of a periodic payment, that falls to be excluded from the EU financial sanction by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2).

(9) The Welsh Ministers may, after considering any representations made by the authority under subsection (3)(g) but before the matters mentioned in section (Matters to be determined before a final notice is given (No. 2))(4) are determined, give the authority-

(a) a notice stating any changes that the Welsh Ministers have decided to make to the procedures or timetable as originally set out in the warning notice under subsection (3)(e) and (f); and

(b) a copy of the warning notice incorporating those changes.

(10) The Welsh Ministers must consult the panel before making any changes under subsection (9).

(11) A warning notice given to a Welsh public authority may be withdrawn at any time before the matters mentioned in section (Matters to be determined before a final notice is given (No.2))(4) are determined, but this does not prevent another warning notice being given to the authority in relation to the same EU financial sanction.

(12) In this section and section (Matters to be determined before a final notice is given (No.2)) "the panel" means the panel established under section (Establishment of independent panel (No.2)) to deal with the EU financial sanction to which the notice relates."

195ZAZMZH: After Clause 37, insert the following new Clause-

"Matters to be determined before a final notice is given (No. 2)

(1) This section applies where-

(a) a warning notice has been given to a Welsh public authority; and

(b) the panel has considered all representations made to it under the procedures set out in that notice.

(2) The panel must make a report to the Welsh Ministers on the matters to which the representations made to the panel relate.

(3) The report-

(a) may be published by the panel in such manner as the panel thinks fit and, if not published by the panel, must be published by the Welsh Ministers in such manner as they think fit;

(b) must include recommendations as to the determination of the matters mentioned in subsection (4)(a) and (b);

(c) if the authority has made representations to the panel about anything the authority considers relevant to any of the matters mentioned in paragraphs (c) to (e) of subsection (4), must include recommendations as to the determination of the matters mentioned in those paragraphs; and

(d) must include the panel's reasons for any recommendations included in the report.

(4) After having had regard to the report, the Welsh Ministers must determine the following matters-

(a) whether any acts of the authority did cause or contribute to the infraction of EU law concerned and, in relation to any periodic payments mentioned in subsection (3)(c) of section (Warning notices), whether those acts have continued and will continue to do so;

(b) the proportion of-

(i) the total amount of the sanction (as specified under subsection (3)(b) of that section), and

(ii) any periodic payments (as specified under subsection (3)(c) of that section),

that, in the light of the acts of the authority which are determined to have had or to be having an effect mentioned in paragraph (a), is to be regarded as reflecting the authority's share of the responsibility for the infraction of EU law concerned or, in relation to any such periodic payments, the continuing infraction of EU law concerned;

(c) whether the authority should be required to make any payment or payments in respect of the EU financial sanction;

(d) if so, what payment or payments the authority should make towards-

(i) the total amount of the sanction specified under subsection (3)(b) of that section; and

(ii) any periodic payments specified under subsection (3)(c) of that section; and

(e) when any such payment or payments should be made.

(5) In determining the matters mentioned in subsection (4)(c), (d) and (e) the Welsh Ministers must have regard to-

(a) the effect on the authority's finances of any amount it may be required to pay and in particular, if the authority has any functions other than Welsh devolved functions, the need to avoid any prejudicial effect on the performance by the authority of those other functions;

(b) the determination under subsection (4)(b); and

(c) any other relevant considerations.

(6) Before making a final decision on the matters mentioned in subsection (4)(c), (d) and (e), the Welsh Ministers must invite-

(a) representations from the authority about the potential effect on its finances and, if it has any functions other than Welsh devolved functions, the effect on those other functions of any amount it may be required to pay; and

(b) if the authority has any functions other than Welsh devolved functions, representations from the appropriate national authority."

195ZAZMZJ: After Clause 37, insert the following new Clause-

"Final notices

(1) The Welsh Ministers may give a final notice to a Welsh public authority only if they have decided in accordance with section (Matters to be determined before a final notice is given (No.2)) to impose a requirement under this Part on the authority.

(2) The final notice must-

(a) identify the EU financial sanction to which the notice relates;

(b) specify the total amount of the sanction (see subsection (3)) and, where relevant, the amount and frequency of any future periodic payments (see subsection (4));

(c) describe the acts of the authority that the Welsh Ministers have under section (Matters to be determined before a final notice is given (No.2))(4) determined-

(i) caused or contributed to the infraction of EU law concerned, in relation to the total amount of the sanction; or

(ii) are causing or contributing to the continuing infraction of EU law concerned, in relation to any other periodic payments due from the United Kingdom;

and set out the reasons for that determination;

(d) summarise the other determinations made by the Welsh Ministers under section (Matters to be determined before a final notice is given (No.2))(4) and set out the reasons for making them;

(e) specify the amount required to be paid by the authority towards the total amount of the sanction and when it is to be paid (and if it is to be paid in instalments, the instalments and the date on which they become payable);

(f) specify the amount to be paid towards any periodic payment that falls due from the United Kingdom and the time when that amount is to be paid (or, if the notice so provides, the time when two or more such amounts are to be paid);

(g) specify how and to whom payments are to be made.

(3) In subsection (2)(b), (c) and (e) the "total amount of the sanction" means the sum of the following-

(a) the amount of the lump sum (if any) due from the United Kingdom under the terms of the EU financial sanction (disregarding any amount that falls to be excluded from the lump sum by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2)); and

(b) the total amount of the periodic payments (if any) which have fallen due from the United Kingdom on or before a day specified in the final notice (disregarding any amount that falls to be excluded from any of those payments by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2));

and the day specified for the purposes of paragraph (b) must be no later than the day on which the final notice is given to the authority.

(4) In subsection (2)(b) "future periodic payments" means periodic payments other than-

(a) any periodic payment taken into account in calculating the total amount of the sanction; or

(b) any periodic payment, or any part of a periodic payment, that falls to be excluded from the EU financial sanction by virtue of section (The EU financial sanctions to which Part (EU fines: Wales) applies)(2).

(5) The requirement to make payments towards periodic payments falling due from the United Kingdom after the notice is given continues so long as those periodic payments continue to fall due, unless the Welsh Ministers give the authority a notice under this subsection terminating the requirement or varying it so as to make it less onerous for the authority.

(6) A notice under subsection (5) may be given, either on the application of the authority or without such an application, where the Welsh Ministers consider it appropriate in the light of a change in the circumstances which applied when the final notice was given or when it was last varied (as the case may be).

(7) The Welsh Ministers may-

(a) consult the panel, or refer any matter relating to the possible termination or variation of the requirement for its advice or recommendations;

(b) invite the authority to make representations; and

(c) if the authority has any functions other than Welsh devolved functions, invite the appropriate national authority to make representations,

before deciding whether to terminate or vary the requirement mentioned in subsection (5).

(8) If the authority makes an application under subsection (6) the Welsh Ministers may by notice to the authority suspend the requirement until further notice (but this does not affect the liability to make any payment once the suspension is ended, unless the final notice is varied to have that effect)."

195ZAZMZK: After Clause 37, insert the following new Clause-

"Interpretation of Part: general

In this Part-

"act" includes omission;

"the appropriate national authority", in relation to a Welsh public authority with any functions other than Welsh devolved functions, has the meaning given by section (Meaning of "Welsh public authority" and related terms)(5);

"Article 260(2) proceedings" has the meaning given by section (Power to require Welsh public authorities to make payments in respect of certain EU financial sanctions)(5)(c);

"Court of Justice" means the Court of Justice of the European Union;

"EU financial sanction" has the meaning given by section (Power to require Welsh public authorities to make payments in respect of certain EU financial sanctions)(5)(a);

"final notice" means a notice under section (Final notices);

"functions" and "Welsh devolved functions" are to be construed in accordance with section (Meaning of "Welsh public authority" and related terms)(3) and (4);

"infraction of EU law", in relation to an EU financial sanction, has the meaning given by section (Power to (motion continued)...

Debate in Parliament | Source |