Government of Wales Bill

House of Commons

Session 2005 - 06
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Government of Wales Bill

Government of Wales Bill
Schedule 8 — Auditor General for Wales
131

Access to documents
17    (1)
The Auditor General has a right of access at all reasonable times to every
document relating to a relevant person which appears to the Auditor
General necessary—
(a)
for the purposes of the Auditor General’s examination of any
5
auditable accounts,
(b)
for the purposes of undertaking studies under section 145A (studies
for improving economy etc. in services provided by relevant bodies)
or 145C (studies relating to registered social landlords) of the
Government of Wales Act 1998 (c. 38), or
10
(c)
for the purposes of carrying out, in accordance with any provision
made by or by virtue of this or any other Act, other examinations or
studies into the economy, efficiency and effectiveness with which a
person has used resources in discharging the person’s functions.
      (2)
The documents relating to a relevant person to which the right conferred by
15
sub-paragraph (1) applies include (in particular)—
(a)
a document which is in the possession, or under the control, of a
person who has received financial assistance from the relevant
person by means of a grant, loan or guarantee or as a result of the
taking of an interest in any property or body corporate,
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(b)
a document which is in the possession, or under the control, of a
person who has supplied goods or services to the relevant person in
pursuance of a contract to which the relevant person was party or
has supplied goods or services in pursuance of a relevant sub-
contract, and
25
(c)
a document of a description specified in an order made by the Welsh
Ministers.
      (3)
The Auditor General may require a person whom the Auditor General
thinks has information of the kind mentioned in sub-paragraph (4)—
(a)
to give the Auditor General any assistance, information and
30
explanation which the Auditor General thinks necessary for any of
the purposes mentioned in sub-paragraph (1),
(b)
to attend before the Auditor General in person to give the assistance,
information or explanation, or to produce any document which is in
the possession, or under the control, of the person and to which the
35
right conferred by that sub-paragraph applies, or
(c)
to provide any facility which the Auditor General may reasonably
require for any of the purposes mentioned in that sub-paragraph.
      (4)
The information referred to in sub-paragraph (3) is information which
relates to—
40
(a)
a relevant person,
(b)
a document to which the right conferred by sub-paragraph (1)
applies, or
(c)
a person who possesses or controls such a document.
      (5)
The Auditor General may, for the purposes of an examination of any
45
auditable accounts, require a relevant person to provide the Auditor
General, at times specified by the Auditor General, with accounts of such of
the person’s transactions as the Auditor General may specify.

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Schedule 8 — Auditor General for Wales
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      (6)
For the purposes of sub-paragraph (2)(b), a contract is a relevant sub-
contract if its performance fulfils, or contributes to the fulfilment of, an
obligation to supply goods or services to the relevant person in another
contract.
      (7)
In this paragraph “auditable accounts” means any accounts or statement of
5
accounts falling to be examined by the Auditor General in accordance with
any provision made by or by virtue of this or any other Act.
      (8)
In this paragraph “relevant person” means—
(a)
in a case within paragraph (a) of sub-paragraph (1) relating to any
accounts which the Welsh Ministers are directed to prepare under
10
section 130, the Welsh Ministers and any person to whose financial
affairs and transactions the accounts are to relate by virtue of
subsection (2) of that section,
(b)
in a case within that paragraph relating to any accounts which the
Assembly Commission is directed to prepare under section 136, the
15
Assembly Commission and any person to whose financial affairs and
transactions the accounts are to relate by virtue of subsection (2) of
that section,
(c)
in a case within that paragraph relating to any other auditable
accounts, the person by whom the accounts are prepared, and
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(d)
in any other case, a person to whom the study or examination relates.
      (9)
No order may be made under sub-paragraph (2)(c) unless the Welsh
Ministers have consulted—
(a)
the Treasury, and
(b)
the Auditor General.
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     (10)
A statutory instrument containing an order under sub-paragraph (2)(c) is
subject to annulment in pursuance of a resolution of the Assembly.
Other powers
18    (1)
Where—
(a)
the Welsh Ministers are entitled to appoint the auditor of the
30
accounts of any person (other than the Auditor General), and
(b)
the Auditor General would not otherwise be eligible to be appointed
as auditor of those accounts,

the Welsh Ministers may appoint the Auditor General to be auditor of those
accounts.
35
      (2)
If in such a case the auditor is to be appointed annually, the Welsh Ministers
may appoint the Auditor General—
(a)
for a year,
(b)
for two or more years, or
(c)
indefinitely until further exercise of the power of appointment.
40
      (3)
The Auditor General may—
(a)
examine, certify or report on a person’s accounts, or
(b)
carry out examinations into the economy, efficiency and
effectiveness with which a person has used resources in discharging
the person’s functions,
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Schedule 8 — Auditor General for Wales
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if provision is made for the Auditor General to do so by an agreement
entered into by the person with either the Welsh Ministers or a Minister of
the Crown.
      (4)
In determining how to exercise functions under paragraph (b) of sub-
paragraph (3) the Auditor General must take into account the Audit
5
Committee’s views as to the examinations which the Auditor General
should carry out under that paragraph.
      (5)
If an Order in Council under section 58 transfers a function of preparing
accounts to the Welsh Ministers, the Secretary of State may by order provide
for the transfer to the Auditor General of any function of the Comptroller
10
and Auditor General in relation to those accounts.
      (6)
An order under sub-paragraph (5) may make such modifications of—
(a)
any enactment (including any enactment comprised in or made
under this Act) or prerogative instrument, or
(b)
any other instrument or document,
15

as the Secretary of State considers appropriate in connection with the
provision made by the order.
      (7)
An Order in Council under section 58 may include any provision that may
be included in an order under sub-paragraph (5).
      (8)
If the Treasury designate the Welsh Ministers in respect of a financial year
20
for the purposes of section 10 of the Government Resources and Accounts
Act 2000 (c. 20) (whole of government accounts), the Auditor General must
carry out the audit required by subsection (2)(c) of that section.
      (9)
Where the Treasury make arrangements with the Welsh Ministers under
subsection (8) of that section, the Auditor General must carry out the audit
25
required by paragraph (c) of that subsection.
     (10)
No order under sub-paragraph (5) which contains provisions in the form of
amendments or repeals of enactments contained in an Act is to be made
unless a draft of the statutory instrument containing it has been laid before,
and approved by a resolution of, each House of Parliament.
30
     (11)
A statutory instrument containing an order under sub-paragraph (5) is
(unless a draft of the statutory instrument has been approved by a resolution
of each House of Parliament) subject to annulment in pursuance of a
resolution of either House of Parliament.
Reports in public interest
35
19    (1)
If the Auditor General thinks that it would be in the public interest to bring
to the public’s attention a matter coming to the Auditor General’s notice in
the course of an examination or study to which sub-paragraph (2) applies,
the Auditor General may prepare a report on that matter.
      (2)
This sub-paragraph applies to—
40
(a)
an examination of auditable accounts (other than accounts falling to
be examined under paragraph 18(3)(a)), and
(b)
an examination or study under section 134 or 139 of this Act, section
145 of the Government of Wales Act 1998 (c. 38) (examinations into
use of resources by body specified in Schedule 17 to that Act) or
45
section 145A of that Act (studies for improving economy etc. in

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Schedule 8 — Auditor General for Wales
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services provided by relevant bodies), except one undertaken at the
request of the body or bodies to which it relates.
      (3)
The Auditor General must, as soon as practicable after preparing a report
under sub-paragraph (1), lay the report before the Assembly.
      (4)
In this paragraph “auditable accounts” has the same meaning as in
5
paragraph 17.
Certification of claims, returns etc.
20    (1)
The Auditor General must, if so required by a relevant body, make
arrangements for—
(a)
certifying any claim or return in respect of a grant made or subsidy
10
paid to that body by the Welsh Ministers, any Minister of the Crown
or any public authority,
(b)
certifying any account submitted by that body to the Welsh
Ministers, any Minister of the Crown or any public authority with a
view to obtaining payment under a contract between that body and
15
the Welsh Ministers, the Minister of the Crown or the public
authority,
(c)
certifying that body’s calculation under paragraph 5(6)(a) of
Schedule 8 to the Local Government Finance Act 1988 (c. 41) of the
amount of its non-domestic rating contribution for a financial year,
20
and for certifying the amount calculated, or
(d)
certifying any return by that body which, by or under any enactment,
is required or authorised to be certified by the body’s auditor or
under arrangements made by the Auditor General.
      (2)
In this paragraph—
25
“public authority” means a body established by or under the
Community Treaties or any enactment, and
“relevant body” means at any time—
(a)
a body whose accounts, or statements of accounts, are
auditable accounts within the meaning of paragraph 17(7), or
30
(b)
a body which at that time is a local government body in
Wales (within the meaning given in section 12(1) of the Public
Audit (Wales) Act 2004 (c. 23)).
Ancillary powers
21    (1)
Arrangements may be made between the Auditor General and a relevant
35
authority—
(a)
for any function of the authority to be exercised by, or by a member
of the staff of, the Auditor General, or
(b)
for administrative, professional or technical services to be provided
by the Auditor General to the authority or by the authority to the
40
Auditor General.
      (2)
Any arrangements under sub-paragraph (1)(a) for the exercise of any
function of a relevant authority do not affect the responsibility of the
relevant authority on whose behalf the function is exercised.
      (3)
If the condition in sub-paragraph (4) is met, the Auditor General and—
45
(a)
a relevant authority,

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(b)
a qualified auditor, or
(c)
an accountancy body,

may make arrangements to co-operate with, and give assistance to, each
other.
      (4)
The condition is that—
5
(a)
the Auditor General considers that to do so would facilitate, or be
conducive to, the exercise of the Auditor General’s functions, and
(b)
the relevant authority, qualified auditor or accountancy body in
question considers that to do so would facilitate, or be conducive to,
the exercise of the functions of that authority, person or body.
10
      (5)
The Auditor General may make arrangements under this paragraph on such
terms and conditions, including conditions as to payment, as the Auditor
General thinks fit.
      (6)
In this paragraph—
“accountancy body” means—
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(a)
a body which is a recognised supervisory body for the
purposes of Part 2 of the Companies Act 1989 (c. 40), or
(b)
an approved European body of accountants,
“approved European body of accountants” means a body of
accountants which—
20
(a)
is established in the United Kingdom or another state which
is either a member State or a non-member EEA State, and
(b)
is for the time being approved by the Welsh Ministers by
order,
“non-member EEA State” means any State which is a Contracting Party
25
to the Agreement on the European Economic Area signed at Oporto
on 2nd May 1992 (as adjusted by the Protocol signed at Brussels on
17th March 1993) but which is not a member State,
“qualified auditor” means a person eligible to be appointed as an
auditor under section 14 of the Public Audit (Wales) Act 2004 (c. 23)
30
(auditor appointed in respect of local government bodies in Wales),
and
“relevant authority” means any Minister of the Crown or government
department, any public authority (including any local authority) or
the holder of any public office.
35
      (7)
A statutory instrument containing an order under sub-paragraph (6) is
subject to annulment in pursuance of a resolution of the Assembly.
Schedule 9
Section 148

Devolution issues
Part 1
40
Preliminary
1     (1)
In this Schedule “devolution issue” means—

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Schedule 9 — Devolution issues
Part 2 — Proceedings in England and Wales
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(a)
a question whether an Assembly Measure or Act of the Assembly, or
any provision of an Assembly Measure or Act of the Assembly, is
within the Assembly’s legislative competence,
(b)
a question whether any function (being a function which any person
has purported, or is proposing, to exercise) is exercisable by the
5
Welsh Ministers, the First Minister or the Counsel General,
(c)
a question whether the purported or proposed exercise of a function
by the Welsh Ministers, the First Minister or the Counsel General is,
or would be, within the powers of the Welsh Ministers, the First
Minister or the Counsel General (including a question whether a
10
purported or proposed exercise of a function is, or would be, outside
those powers by virtue of section 79(8) or 80(1)),
(d)
a question whether there has been any failure to comply with a duty
imposed on the Welsh Ministers, the First Minister or the Counsel
General (including any obligation imposed by virtue of section 79(1)
15
or (7)), and
(e)
a question of whether a failure to act by the Welsh Ministers, the First
Minister or the Counsel General is incompatible with any of the
Convention rights.
      (2)
In this Schedule “civil proceedings” means proceedings other than criminal
20
proceedings.
2
A devolution issue is not to be taken to arise in any proceedings merely
because of any contention of a party to the proceedings which appears to the
court or tribunal before which the proceedings take place to be frivolous or
vexatious.
25
Part 2
Proceedings in England and Wales
Application of Part 2
3
This Part applies in relation to devolution issues in proceedings in England
and Wales.
30
Institution of proceedings
4     (1)
Proceedings for the determination of a devolution issue may be instituted by
the Attorney General or the Counsel General.
      (2)
The Counsel General may defend any such proceedings instituted by the
Attorney General.
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      (3)
This paragraph does not limit any power to institute or defend proceedings
exercisable apart from this paragraph by any person.
Notice of devolution issue
5     (1)
A court or tribunal must order notice of any devolution issue which arises in
any proceedings before it to be given to the Attorney General and the
40
Counsel General (unless a party to the proceedings).

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      (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 High Court or Court of Appeal
6
A magistrates’ court may refer any devolution issue which arises in civil
5
proceedings before it to the High Court.
7     (1)
A court may refer any devolution issue which arises in civil proceedings
before it to the Court of Appeal.
      (2)
Sub-paragraph (1) does not apply—
(a)
to a magistrates’ court, the Court of Appeal or the Supreme Court, or
10
(b)
to the High Court if the devolution issue arises in proceedings on a
reference under paragraph 6.
8
A tribunal from which there is no appeal must refer any devolution issue
which arises in proceedings before it to the Court of Appeal; and any other
tribunal may make such a reference.
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9
A court, other than the Court of Appeal or the Supreme Court, may refer any
devolution issue which arises in criminal proceedings before it to—
(a)
the High Court if the proceedings are summary proceedings, or
(b)
the Court of Appeal if the proceedings are proceedings on
indictment.
20
References from Court of Appeal to Supreme Court
10
The Court of Appeal may refer any devolution issue which arises in
proceedings before it (otherwise than on a reference under paragraph 7, 8 or
9) to the Supreme Court.
Appeals from superior courts to Supreme Court
25
11
An appeal against a determination of a devolution issue by the High Court
or the Court of Appeal on a reference under paragraph 6, 7, 8 or 9 lies to the
Supreme Court but only—
(a)
with permission of the court from which the appeal lies, or
(b)
failing such permission, with permission of the Supreme Court.
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Part 3
Proceedings in Scotland
Application of Part 3
12
This Part applies in relation to devolution issues in proceedings in Scotland.
Institution of proceedings
35
13    (1)
Proceedings for the determination of a devolution issue may be instituted by
the Advocate General for Scotland.
      (2)
The Counsel General may defend any such proceedings instituted by the
Advocate General for Scotland.