Clause 138: Accounts of Subsidiaries of Assembly Commission

492.     This clause ensures that the AGW, when examining any accounts of the Assembly Commission, has a right of access to documents and information relating to the accounts of any subsidiary it may have. It also gives the AGW a right to any assistance or explanation which the AGW reasonably thinks is necessary from any person holding or accountable for such a document (subsection (1)).

493.     In this context, a "subsidiary of the Assembly Commission" means (subsection (4)):

a)     a body corporate (such as a company) or other undertaking (as defined in section 259 (1) of the Companies Act 1985 (c.6), in relation to which the Assembly Commission is a parent undertaking for the purpose of section 258 of that Act;

b)      a trust of which the Assembly Commission is settlor; or

c)      a charitable institution of which the Assembly Commission is founder, but which is neither a body corporate nor a trust (subsection (4)).

494.     Subsection (2) gives the Treasury a power to direct a subsidiary of the Assembly Commission to include additional information in its accounts. Such a direction would override any prohibition on the inclusion in accounts of that type of that information (subsection (3)). Legislative rules on company or charity accounts may be relevant here.

Clause 139: Examinations into Assembly Commission's Use of Resources

495.     This clause gives the AGW power to carry out examinations into the economy, efficiency and effectiveness with which the Assembly Commission has used its resources in discharging its functions. These are commonly known as "value for money", or "VFM" examinations. In doing so, the AGW is not entitled to question the merits of the policy objectives being pursued by the Assembly Commission (for example, a policy concerning recruitment or employment of staff) (subsection (2)).

496.     Before carrying out any such examinations, the AGW must take into account the views of the Audit Committee of the Assembly as to what examinations the AGW should carry out under this provision (subsection (3)). The AGW may, but does not have to, lay a report of the results of any such examination before the Assembly (subsection (4)).

Clause 140: Whole of government accounts: Welsh Ministers, and Clause 141: Functions of Auditor General

497.     Clause 140 makes provision for the preparation, by the Welsh Ministers, of "Whole of Government accounts" in relation to Wales. This concept was introduced by the Government Resources & Accounts Act 2000 (c.20). It is a set of accounts for a group of bodies, each of which appears to HM Treasury to exercise functions of a public nature or to be entirely or substantially funded from public money (section 9(1), Government Resources & Accounts Act 2000). It can also include information about activities of other persons or bodies, which appear to the Treasury to be activities of a public nature. (Section 9(2), Government Resources & Accounts Act 2000). Such accounts can, therefore, be used to give a total picture of the financial transactions of the public sector, or a part of the public sector.

498.     Under Section 10(8) of the Government Resources & Accounts Act 2000, as it will be amended by the Bill, the Treasury can make arrangements with the Welsh Ministers to gather information from bodies designated by the Treasury for the purpose of preparing Whole of Government accounts in relation to Wales. Where such an arrangement exists, the Welsh Ministers must prepare a set of accounts for those bodies (subsection (2)). The accounts may include information about activities which are not activities of bodies designated by the Treasury, but which appear to the Welsh Ministers to be activities of a public nature (subsection (3)). Before designating a body, or giving any direction to it, the Treasury must consult the Welsh Ministers where it thinks appropriate. This will normally be where the body has activities relating wholly or in significant parts to Wales.

499.     The clause makes provision as to the form of the accounts (subsections (2), (4) and (6)).

500.     The Welsh Ministers must send accounts under this section to the AGW by 30^th November in the following financial year, or such other date as they may prescribe by Order after consulting HM Treasury and the AGW. The reason for this power to change the date is that the system of Whole of Government accounts is still relatively new and aspects of it are still being piloted by the Treasury.

501.     The AGW must examine accounts sent to the AGW under clause 140 with a view to being satisfied that they present a true and fair view (clause 141(1)). The AGW must then report on the accounts to the Assembly (subsection (2)). This must be done within four months of the accounts being submitted to the AGW (subsection (4)). The auditors of the bodies included in the Whole of Government accounts must give the AGW such information and explanations as the AGW may reasonably require for to carry out functions under clause 141 (subsection (3)).

Clause 142 : Audit Committee Reports

502.     The Audit Committee of the Assembly can consider, and report to the Assembly on any accounts, statement of accounts or report laid before the Assembly by the AGW or the AGW's own auditor (subsection (1)).

503.     Thus, in addition to the scrutiny of accounts by the AGW, and the AGW's power to examine and report on the value for money achieved by the Welsh Ministers or the Assembly Commission, the Audit Committee may provide a further level of scrutiny, based on the findings of the AGW. This power of the Audit Committee also extends to other reports and accounts, and reports of examinations, which the AGW will lay before the Assembly. These include examinations into the economy, efficiency and effectiveness with which a body or office specified in Schedule 17 to the Government of Wales Act 1998 has used its resources in discharging its functions, or reports on the accounts of Welsh NHS bodies, as defined in section 61 of the Public Audit (Wales) Act 2004 (c.23).

504.     In addition to these power of the Audit Committee, the Committee can take evidence, if requested to do so, on behalf of the House of Commons Committee of Public Accounts, and report its findings to that Committee. The Committee of Public Accounts can take evidence from devolved Welsh public bodies and would usually do so on the basis of a report from the Comptroller and Auditor General (see clause 135). and report its. The persons from whom the Audit Committee can take evidence under this power are:

a)     the principal accounting officer for the Welsh Ministers;

b)      the principal accounting officer for the Assembly Commission, and

c)      any additional accounting officer designated by either of them.

Clause 143: Publication of Accounts and Audit Report etc

505.     This clause imposes an obligation on the Assembly to publish the documents referred to in subsection (2) as soon after they are laid before the Assembly as is reasonably practicable.

506.     The documents in question are:

a)     any accounts, statement of accounts or reports laid before the Assembly by the AGW;

b)      any accounts or reports laid before the Assembly by the AGW's own auditor;

c)      any report laid before the Assembly by the Audit Committee under clause 142(1), i.e. a report by the Audit Committee on any accounts, statement of accounts or report laid before the Assembly by the AGW or the AGW's own auditor; and

d)      the annual estimate prepared by the AGW of the income and expenses of the AGW's office for the following financial year, submitted to the Audit Committee under paragraph 12(1) of Schedule 8 to the Bill, as amended by the Audit Committee if applicable.

Clause 144: Auditor General

507.     This clause provides for the continuation of the Office of Auditor General for Wales or Archwilydd Cyffredinol Cymru. The office was first established by section 90 of the Government of Wales Act 1998 (c.38).

508.     Schedule 8 makes other provision concerning the office of the AGW

PART 6: MISCELLANEOUS AND SUPPLEMENTARY

Overview of Part 6

509.     Part 6 of the Bill deals with Miscellaneous and Supplementary matters; only some of these are referred to here.

510.     The provisions (ss.116-118) in the 1998 Act relating to Welsh public records are carried forward into the new Bill, with amendments. These take account of the changes being implemented by this Bill (so, for example, records of the Assembly Commission created by clause 27 are mentioned as Welsh public records), together with other changes in public administration in Wales (so for example the records of the newly-created Welsh Centre for Health are included as Welsh public records).

511.     In the same way, the existing provisions in Schedule 8 of the 1998 Act on legal proceedings on "Devolution issues" are carried forward into the new Bill as

Schedule 9, but the provisions are updated to take account of the creation of the Supreme Court by the Constitutional Reform Act 2005.

512.     Clauses 149, 150 and 152 deal with issues potentially arising as a result of use by the Assembly of its Measure-making or Act-making powers. Clause 149 (which is based on s.104 of the Scotland Act 1998) authorises the Secretary of State to make orders amending legislation or any other instrument or document consequential upon an Assembly Measure or Act or another piece of subordinate legislation relating to Wales. The purpose of this is to enable the Secretary of State to ensure that the statute book for England and Wales maintains general consistency and coherence, and that questions as to the meaning of legislation (other than that made by the Assembly) are not inadvertently raised as a result of any Measure adopted by the Assembly. Clause 150 is similarly a "tidying-up" power, enabling Her Majesty in Council to make orders to deal with any consequences of possible ultra vires action by the Assembly in exercise of its legislative functions. Clause 152 carries forward, with amendments, the existing provision (s. 110) of the 1998 Act, enabling courts or tribunals, in circumstances where they have concluded that either the Assembly or the Welsh Ministers have gone beyond their legislative powers, to make orders limiting or removing the retrospective effect of any such conclusion.

513.     Finally, clauses 153 and 155 provide guidance to the courts on the interpretation of Assembly legislation. By clause 155, and following s.122 of the 1998 Act, the English and Welsh texts of legislation are to be treated as of equal standing. Clause 153 authorises a court to "read down" Assembly legislation, so far as that is possible, in order to be able to conclude that a provision in issue is intra vires.

DETAILED COMMENTARY ON CLAUSES IN PART 6

Welsh public records

Clause 145: Status of Welsh public records

514.     This clause replicates section 116 of the Government of Wales Act 1998 except in so far as post-separation of the Welsh Assembly Government from the Assembly the duty to preserve Welsh public records can only be imposed on the Welsh Assembly Government rather than on the Assembly.

515.     The effect is that Welsh public records (as defined by clause 147) are governed by the Public Records Act 1958 until the Lord Chancellor makes an order under clause 146 imposing a duty to preserve them on either the Welsh Ministers or a member of staff of the Welsh Assembly Government.

516.     The Public Records Act 1958 provides for the preservation and safe-keeping of public records. Rights of access to such records are now governed by the Freedom of Information Act 2000.

Clause 146: Transfer of responsibility

517.     This clause replicates the Lord Chancellor's order-making power under section 117 of the Government of Wales Act 1998 except in so far as post-separation the duty to preserve Welsh public records can only be imposed on the Welsh Assembly Government rather than on the Assembly.

518.     It allows the Lord Chancellor (who is otherwise responsible for Welsh public records by virtue of clause 145 and the Public Records Act 1958) to transfer responsibility for the preservation and safe-keeping of such records to the Welsh Ministers, or to a member of staff of the Welsh Assembly Government.

519.     The Lord Chancellor must consult the Welsh Ministers before transferring responsibility to them (or to their civil servants) under this clause.

Clause 147: Meaning of "Welsh public records"

520.     This clause defines "Welsh public records".

Miscellaneous

Clause 148: Resolution of devolution issue

521.     This clause gives effect to Schedule 9, which makes detailed provision about the resolution of devolution issues.

Clause 149: Power to make consequential provision

522.     This clause enables the UK Government to make subordinate legislation to deal with the consequences of provision made by or under 'Welsh legislation'.

523.     The clause enables the Secretary of State by order, to make provision which is considered appropriate in consequence of any provision made by or under an Assembly Measure or Act, or any provision of subordinate legislation made, confirmed or approved (or purporting to be made, confirmed or approved) by the Welsh Ministers, the First Minister or the Counsel General, or any provision of subordinate legislation made, confirmed or approved (or purporting to be made, confirmed or approved) by a person other than a Minister of the Crown under an Act of Parliament where the statutory instrument is required to be laid before the Assembly.

524.     An order under this clause can make provision having retrospective effect and may modify any enactment, prerogative instrument or other instrument or document as is considered appropriate by the Secretary of State. Orders under this clause are subject to negative procedure in Parliament (i.e. they can be annulled after being made by a resolution of either House of Parliament) unless they modify an Act, in which case they are subject to affirmative procedure (i.e. they cannot be made unless they have first been laid before and approved in draft by a resolution of both Houses of Parliament).

Clause 150: Power to remedy ultra vires acts

525.     This clause enables Her Majesty by Order in Council to make provision in consequence of an Assembly Measure or Act or an exercise by any person of a function imposed or conferred by Assembly Measure or Act which is, or is suspected to be, outside the competence of the Assembly or person. Such provision could be given retrospective effect to enable third parties being put in the position they thought they were in before a defect was discovered.

526.     An Order in Council under this clause can make any modifications as Her Majesty considers appropriate to remedy any enactment, prerogative or other instrument or document. However, where the proposed modifications are amendments to or repeals of Acts, a draft statutory instrument has to be approved by a resolution of both Houses of Parliament before a recommendation can be made to Her Majesty to make the Order in Council.

Clause 151: Intervention in case of functions relating to water etc.

527.     This clause allows the Secretary of State to intervene where the exercise of (or failure to exercise) devolved functions by the First Minister, the Welsh Ministers or the Counsel General, or by anyone else upon whom such functions have been conferred by an Assembly Measure or Act, might have a serious adverse impact on water resources, supply or quality in England. The intervention is to take the form of a notice to the person(s) on whom such functions are conferred. The Environment Agency and any water or sewerage undertaker concerned in the case must also be notified that the Secretary of State is intervening. The effect of the notice is to provide that the Secretary of State may exercise the relevant function instead of the person(s) on whom it is conferred. The notice must explain why the Secretary of State is intervening. It can also make provision about the effect of actions previously taken by the person(s) on whom the function is conferred, and extend the time for the taking of steps in relation to that function by the Secretary of State, or any other person.

Clause 152: Power to vary retrospective decisions

528.     This clause provides for a court or tribunal to remove, or limit any retrospective effect, or suspend any such effect, of a decision by it that an Assembly Measure or Act or a provision of it is outside the Assembly's competence or that the Welsh Ministers, the First Minister or Counsel General did not have the power to make a provision of subordinate legislation.

529.     The clause also provides that one of the criteria the court or tribunal must take into account when determining whether to use this power is the extent to which third parties would otherwise be adversely affected.

530.     The clause also provides that if a court or tribunal is considering using this power it must in certain circumstances give notice of that fact to the Attorney General and the Counsel General in relation to proceedings in England and Wales, to the Advocate General for Scotland in relation to proceedings in Scotland and to the Advocate General for Northern Ireland in relation to proceedings in Northern Ireland. The appropriate person may then become a party to the proceedings so far as they relate to the making of the order. The clause enables the court or tribunal to take into account and award the whole or part of the additional expense incurred as a result of the participation of an appropriate person to the person who incurred them.

531.     Provision for court procedures applying for the purposes of this clause can be made under any of the power to make provision for regulating procedure before any court and tribunal. Such provision would include, for example, how to determine the time within which any notice is to be given.

Clause 153: Interpretation of legislation

532.     This clause makes provision for the interpretation of a proposed Assembly Measure, an Assembly Measure, an Act or a Bill or of subordinate legislation made, confirmed or approved or purporting to be legislation made, confirmed or approved by the Welsh Ministers, the First Minister or the Counsel General. The purpose of the clause is to enable the courts to give effect to such legislation, wherever possible, rather than to invalidate it merely because it could be read in such as a way as to be outside the competence of the Assembly or the competence of the Welsh Ministers, the First Minister or the Counsel General.

533.     It provides that, in such case, the legislation is to be read as narrowly as is required for it to be considered to be within competence or powers (if such a reading is possible) and to have effect according that narrow reading.

Clause 154: Functions exercisable in relation to Wales

534.     This clause allows Her Majesty to make Orders in Council specifying functions which are, or are not, for such purposes as the Order may specify:

a)     exercisable by the First Minister, the Welsh Ministers or the Counsel General; or

b)     exercisable in relation to Wales.

535.     Orders under this clause are subject to negative procedure in Parliament, (i.e. they can be annulled after being made by a resolution of either House of Parliament).

Clause 155: English and Welsh texts of legislation

536.     This clause confers equal validity on the English and Welsh texts of legislation (including Assembly Acts and Measures, and subordinate legislation) made bilingually.

537.     It also contains a provision allowing the Welsh Ministers to provide by order (subject to the prior approval of the Assembly by formal resolution) that particular Welsh words and phrases in such legislation are to have the same meaning as the English words and phrases specified in relation to them in the order. The purpose of this provision is to ensure that the legislation has the same effect in both languages.

Clause 156: Orders and directions

538.     This clause contains provision applicable to any power in the Act to make orders. It provides that the Welsh Ministers' and a Minister of the Crown's powers under the Act to make orders are to be exercisable by statutory instrument. It also provides that any power under the Act to give a direction includes a power to vary or revoke the direction.

Clause 157: Interpretation

539.     This section defines terms used in the Act.

Clause 158: Index of defined expressions

540.     This clause contains a list of expressions which are defined or explained in the Act and notes the provisions where such definitions or explanations are to be found.

Clause 159: Minor and consequential amendments

541.     This clause introduces Schedule 10 which contains minor and consequential amendments to other legislation that follow from the provisions of this Act. It enables the Secretary of State by order to make further amendments, in consequence of this Act, to legislation which was made before, or was made in the same Parliamentary session as, this Act.

542.     The clause also provides for a mechanism that ensures that the Secretary of State cannot make an order making consequential amendments to another Act, unless the order has been approved by both Houses of Parliament. The mechanism is that the Secretary of State must lay a draft of the order before both Houses of Parliament, and cannot make the order until both Houses have made a resolution approving the draft order. If an order is made without the approval of both Houses of Parliament, a resolution of either House of Parliament can annul that order.

Clause 160: Commencement etc.

543.     This clause provides that, subject to the following exceptions, the provisions of this Act come into force immediately after the Welsh general election in 2007. The exceptions are as follows.

544.     Provisions which come into force on the date of Royal Assent:

545.     Provisions which come into force on 1^st April 2007:

546.     Provisions which come into force immediately after the first appointment of a First Minister under clause 46:

a)     Any provision which confers or imposes a function on the First Minister, the Welsh Ministers, the Counsel General or the Assembly Commission, and any provision in Schedule 12 which repeals a provision of GoWA which previously conferred or imposed those (or substantially the same) functions on the Assembly.

b)     The amendments to and repeals of provisions of GoWA made by Schedule 10 of this Bill, and the entries in Schedule 12 relating to them.

547.     Repeal by Schedule 12 of section 83 GoWA:

548.     This comes into force when that section (which requires the Secretary of State to prepare accounts of loans made by the Secretary of State to the Assembly under s.82 GoWA and repayments and interest payments made to the Secretary of State under that section) has been complied with for the financial year ending 31^st March 2007.

549.     Assembly Act provisions:

a)     The "Assembly Act provisions" are defined by clause 102(8) as clauses 106 and 107, Schedule 7, and clauses 109 to 114.

b)     Clauses 106 and 107 give the Assembly primary legislative powers within the matters listed in Schedule 7. These powers are exercisable by the making of Acts of the Assembly. Clauses 109 to 114 set out related procedural provisions.

c)     Clauses 102 and 104 come into force immediately after the Welsh general election in 2007. Clause 102 provides for the holding of a referendum on whether the Assembly Act provisions should be brought into force. Clause 104 provides that if the majority of voters in such a referendum vote in favour of bringing the Assembly Act provisions into force, then the Welsh Ministers can bring them into force on such date as they may specify by making a commencement order.