Public Audit (Wales) Bill [HL]

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Session 2003 - 04
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Public Audit (Wales) Bill [HL]

Public Audit (Wales) Bill [HL]
Schedule 3 — Transfer schemes
60

Schedule 3
Section 68

Transfer schemes
Preparation of transfer schemes
1     (1)
The Secretary of State may, with the consent of the Assembly, by order—
(a)
make one or more schemes for the transfer to the Auditor General for
5
Wales of defined property, rights and liabilities of the Comptroller
and Auditor General, and
(b)
make one or more schemes for the transfer to the Auditor General for
Wales of defined property, rights and liabilities of the Audit
Commission.
10
      (2)
The property, rights and liabilities which may be the subject of a scheme
include—
(a)
any that would otherwise be incapable of being transferred or
assigned, and
(b)
rights and liabilities under a contract of employment.
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      (3)
For the purpose of dividing any property, rights or liabilities in connection
with a scheme, the scheme may—
(a)
create in favour of the transferor an interest in, or right over, any
property transferred in accordance with the scheme;
(b)
create in favour of the Auditor General for Wales an interest in, or
20
right over, any property retained by the transferor;
(c)
create new rights and liabilities as between the Auditor General for
Wales and the transferor; or
(d)
in connection with provision made under paragraph (a), (b) or (c),
make incidental provision as to the interests, rights and liabilities of
25
persons other than the transferor and the Auditor General for Wales
with respect to the subject-matter of the scheme;

and references in this Schedule (other than this sub-paragraph) or section 68
to the transfer of property, rights or liabilities (so far as relating to transfers
provided for in a scheme) are accordingly to be construed as including
30
references to the creation of any interests, rights or liabilities by virtue of
paragraph (a), (b) or (c) or the making of provision by virtue of paragraph
(d).
      (4)
A scheme may define the property, rights and liabilities to be transferred by
specifying or describing them (including describing them by reference to a
35
specified part of the transferor’s undertaking).
      (5)
A scheme may include supplementary, incidental, transitional and
consequential provision.
      (6)
The provision that may be made by virtue of sub-paragraph (3)(c)
includes—
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(a)
provision for treating any person who is entitled by virtue of an
order under this paragraph to possession of a document as having
given another person an acknowledgement in writing of the right of
that other person to the production of the document and to delivery
of copies of it, and
45
(b)
provision applying section 64 of the Law of Property Act 1925 (c. 20)
(production and safe custody of documents) in relation to any case in
relation to which provision within sub-paragraph (3)(a) has effect.

Public Audit (Wales) Bill [HL]
Schedule 3 — Transfer schemes
61

      (7)
Sub-paragraph (8) applies in the case of a scheme which contains provision
for the transfer of rights or liabilities under the contract of employment of an
individual (“the employee”).
      (8)
The provision that may be made in the scheme by virtue of sub-paragraph
(5) includes provision with respect to—
5
(a)
the employee’s eligibility to become a member of any pension
scheme by virtue of his employment with the transferee if the rights
or liabilities relating to his contract of employment are transferred in
accordance with the scheme, and
(b)
rights of, or rights or liabilities in respect of, the employee under—
10
(i)
any pension scheme of which he may become a member by
virtue of his employment with the transferee, or
(ii)
any pension scheme of which he is a member by virtue of his
employment immediately before the transfer,

(and for the purposes of this sub-paragraph “pension scheme” includes any
15
scheme made under section 1 of the Superannuation Act 1972 (c. 11)
(superannuation schemes as respects civil servants etc)).
      (9)
The power to make an order under this paragraph is exercisable by statutory
instrument, and any such instrument is subject to annulment in pursuance
of a resolution of either House of Parliament.
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2
Before making an order under paragraph 1, the Secretary of State must
consult—
(a)
the Auditor General for Wales,
(b)
in the case of an order containing a scheme within paragraph 1(1)(a),
the Comptroller and Auditor General, and
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(c)
in the case of an order containing a scheme within paragraph 1(1)(b),
the Audit Commission.
Transfer of employees
3     (1)
This paragraph has effect in any case where the rights and liabilities relating
to an individual’s contract of employment are transferred in accordance
30
with a scheme.
      (2)
The transfer does not break the continuity of the individual’s employment,
and accordingly—
(a)
he is not to be regarded for the purposes of Part 11 of the
Employment Rights Act 1996 (c. 18) (redundancy) as having been
35
dismissed by virtue of the transfer,
(b)
his period of employment with the transferor counts as a period of
employment with the transferee for the purposes of that Act.
      (3)
The terms and conditions of the individual’s employment with the
transferee (taken as a whole) must not be less favourable to the individual
40
than the terms and conditions on which he is employed immediately before
the transfer.
4     (1)
This paragraph has effect in any case where—
(a)
a scheme contains provision for the transfer of rights or liabilities
under the contract of employment of any individual (“the
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employee”), but

Public Audit (Wales) Bill [HL]
Schedule 4 — Repeals
62

(b)
the employee informs the transferor or the Auditor General for
Wales that he objects to becoming employed by the Auditor General
for Wales.
      (2)
Section 68—
(a)
does not operate to transfer any rights, powers, duties or liabilities
5
under or in connection with the contract of employment, but
(b)
operates to terminate that contract on the day preceding the transfer
date.
      (3)
The employee is not, by virtue of that termination, to be treated for any
purpose as having been dismissed.
10
      (4)
In this paragraph “the transfer date”, in relation to a scheme, means the date
on which (but for this paragraph) any rights, powers, duties or liabilities
under the employee’s contract of employment would have been transferred
in accordance with the scheme.
Continuity
15
5     (1)
Anything done by or in relation to the transferor for the purposes of or in
connection with anything transferred by section 68 which is in effect
immediately before it is transferred is to be treated as if done by or in relation
to the Auditor General for Wales.
      (2)
There may be continued by or in relation to the Auditor General for Wales
20
anything (including legal proceedings) relating to anything so transferred
which is in the process of being done by or in relation to the transferor
immediately before it is transferred.
      (3)
A reference to the transferor in any document relating to anything so
transferred is to be taken (so far as necessary for the purposes of or in
25
consequence of the transfer) as a reference to the Auditor General for Wales.
      (4)
A transfer under section 68 does not affect the validity of anything done by
or in relation to the transferor before the transfer takes effect.
Schedule 4
Section 72

Repeals
30

Short title and chapter
Extent of repeal

Local Government Act 1972
In section 137(7) the words from “and section

(c. 70)
14” to the end.

Housing Associations Act 1985
Section 75(1)(f).

(c. 69)

35

Airports Act 1986 (c. 31)
In section 24(3)(a) the words “and Wales”.

Health Service Commissioners
In Schedule 1A, paragraph 13(5).

Act 1993 (c. 46)

Public Audit (Wales) Bill [HL]
Schedule 4 — Repeals
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Short title and chapter
Extent of repeal

Audit Commission Act 1998
In section 33(6), the word “and” immediately

(c. 18)
preceding paragraph (c).

In section 34(6), the word “and” immediately

preceding paragraph (d).

5

In section 36(1), in the Table, the entry relating

to the National Council for Education and

Training for Wales.

Section 40(2A).

Section 41B—

10

(a)
subsections (2), (4) and (6),

(b)
in subsection (5), the words “made by

the Secretary of State”.

In section 47(1)(a), the words “and community”

and “and Wales”.

15

In section 52(1), the words “or the National

Assembly for Wales”.

Government of Wales Act 1998
In section 92—

(c. 38)
(a)
subsection (1),

(b)
in subsection (2), the words “, having

20

regard to any arrangements made or

capable of being made under subsection

(1),”,

(c)
subsection (3).

Section 93(3).

25

Section 100(6).

In section 144(9), the word “and” immediately

preceding paragraph (b).

Section 145(5).

In Schedule 6, paragraph 8(5).

30

In Schedule 7, paragraph 8(5).

In Schedule 9, paragraph 12(5).

In Schedule 16, paragraph 99(4).

In Schedule 17, in paragraph 1, the words

“(other than the Care Council for Wales)”.

35

Local Government Act 1999
Section 8(1).

(c. 27)
Section 22(7).

Care Standards Act 2000 (c. 14)
In Schedule 1, in paragraph 27, sub-paragraph

(d) and the word “and” immediately

preceding it.

40

Health (Wales) Act 2003 (c. 4)
In Schedule 2, paragraph 25(4).

Local Government Act 2003 (c.
Section 109(2).

26)