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Taxation of Chargeable Gains Act 1992
359. Paragraph 16 adds paragraph 4 of Schedule 8 (which provides no gain or loss treatment for a transfer from the C&AG to the new NAO) to a list of “no gain/ no loss provisions” in section 288(3A) of the Taxation of Chargeable Gains Act 1992.
National Lottery etc. Act 1993
360. Paragraph 17 amends the National Lottery etc. Act 1993 to provide that the National Lottery Commission will continue to be permitted to make disclosures to the C&AG in connection with value for money examinations under Part 2 of the National Audit Act 1983.
Government of Wales Act 1998
361. Paragraph 18 repeals paragraph 1 of Schedule 12 to the Government of Wales Act 1998. This means that the C&AG will no longer be able to hold the office of Auditor General for Wales at the same time.
Government Resources and Accounts Act 2000
362. Paragraph 19 amends paragraph 18 of Schedule 1 to the Government Resources and Accounts Act 2000 to omit provisions related to the preparation of the NAO’s accounts which have been superseded by those in paragraphs 24 and 25 of Schedule 6 to this Bill.
Freedom of Information Act 2000
363. Paragraphs 20 and 21 provide for the continuity of obligations under the Freedom of Information Act 2000 between the old NAO the new NAO and the C&AG. The new NAO will take on the information obligations of old NAO. It will hold information on behalf of the C&AG under the new structure and be responsible for dealing with requests under that Act.
Constitutional Reform Act 2005
364. Paragraph 22 omits paragraph 7 of Schedule 6 to the Constitutional Reform Act 2005. This provision is superseded by the new arrangements for delegation of the C&AG’s functions in paragraph 6 of Schedule 7 to this Bill.
Companies Act 2006
365. Paragraph 23 omits section 1230(3)(a) of the Companies Act 2006 which is superseded by the new duty for NAO to provide the C&AG with resources under paragraph 2 of Schedule 7 to the Bill.
Corporate Manslaughter and Homicide Act 2007
366. Paragraph 25 omits the reference to old NAO from Schedule 1 to the Act, but enables proceedings to be taken against old NAO in the event that offences are alleged to have been committed by old NAO before this provision comes into force. The offence in section 1 of the 2007 Act automatically applies to new NAO because it is a body corporate.
Court Funds Rules 1987 (S.I. 1987/821)
367. Paragraph 26 provides for the C&AG to authenticate a copy of an account relating to a fund in court that has been issued by the Accountant General in response to a request under rule 63 of the Court Funds Rules 1987.
Official Secrets Act 1989 (Prescription) Order 1990 (S.I. 1990/200)
368. Paragraph 27 amends the Official Secrets Act 1989 (Prescription) Order 1990 so that members and employees of the new NAO will be treated as if they were Crown servants for the purposes of the Official Secrets Act 1989.
Race Relations (Prescribed Public Bodies) (No. 2) Regulations 1994 (S.I. 1994/1986)
369. Paragraph 29 provides that new NAO will continue to be prescribed for the purposes of section 75(5) of the Race Relations Act 1976. Prescription allows NAO to apply certain employment restrictions notwithstanding that Act.
Scotland Act 1998 (Transitory and Transitional Provisions) (Publications and Interpretation etc of Acts of the Scottish Parliament) Order 1999 (S.I. 1999/1379)
370. Paragraph 30 amends the definition of the C&AG for the purposes of interpreting legislation made by the Scottish Parliament, by removing the reference to the C&AG’s appointment under the Exchequer and Audit Departments Act 1866.
Public Interest Disclosure (Prescribed Persons) Order 1999 (S.I. 1999/1549)
371. Paragraph 31 amends the description of the C&AG in the Schedule of prescribed persons to whom a protected “whistleblowing” disclosure may be made.
Greater London Authority (Disqualification) Order 2000 (S.I. 2000/432)
372. Paragraph 32 provides that members and employees of the NAO may not be mayor of London or a member of the London Assembly.
Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 (S.I. 2001/2188)
373. Paragraph 33 allows the National Lottery Commission to disclose confidential information, within the meaning of the Financial Services and Markets Act 2000, to the C&AG for the purposes of value for money examinations under Part 2 of the National Audit Act 1983.
Race Relations Act 1976 (Statutory Duties) Order 2001 (S.I. 2001/3458)
374. Paragraph 34 provides for the C&AG and the new NAO to be or continue be subject to the obligation to prepare a Race Equality Scheme under article 2 of this Order. It also provides for continuity between the old and the new structures for things done or in the process of being done.
Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (S.I.2005/2966)
375. Paragraph 35 provides for the C&AG and the new NAO to be or continue to be subject to the duty to prepare and implement a Disability Equality Scheme under article 2 of these Regulations. It also provides for continuity between the old and the new structures for things done or in the process of being done in relation to that duty.
Public Contracts Regulations 2006 (S.I. 2006/5)
376. Paragraph 36 ensures that the new NAO like the old NAO is subject to the procurement obligations and thresholds that apply to a body listed in Schedule 1 to the Public Contracts Regulations 2006 (“GPA Annex 1A contracting authorities”).
Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006 (S.I. 2006/2930)
377. Paragraph 37 provides for the C&AG and the new NAO to be or continue to be subject to the general statutory duty to prepare and implement a Gender Equality Scheme. It also provides for continuity between the old and the new structures for things done or in the process of being done in relation to that duty.
Child Support Information Regulations 2008 (S.I. 2008/2551)
378. Paragraph 38 provides that the offence for disclosure of information under section 50 of the Child Support Act 1991 will continue to apply to current and former members and employees of NAO.
PART 8: TRANSPARENCY OF GOVERNMENT FINANCIAL REPORTING TO PARLIAMENT
Clause 51: Inclusion in departmental estimates of resources used by designated bodies
379. Subsection (1) provides that the clause amends the Government Resources and Accounts Act 2000 (“the GRAA 2000”).
380. Subsection (2) inserts a new section 4A into the GRAA 2000. Its provisions are as follows:
381. New section 4A(1) gives the Treasury powers to give directions regarding how a government department must prepare a Supply Estimate for approval by the House of Commons in respect of a financial year.
382. New section 4A(2) gives the Treasury powers to direct that the departmental Supply Estimate include information relating to resources expected to be used by any body that is a designated body in relation to that department.
383. New section 4A(3) provides that a body is a designated body in relation to a government department either if it is designated by an order made by the Treasury or it falls within a description of body designated in relation to the department by a Treasury order.
384. New section 4A(4) provides for a body to be designated either for a particular financial year or generally.
385. New sections 4A(5) to 4A(8) make provision in relation to bodies funded out of a devolved Consolidated Fund. Section 4A(5) provides that sections 4A(6) and (7) apply if the Treasury expect the use of resources by a body in a financial year to involve payments out of a devolved Consolidated Fund to or for the benefit of a body but do not expect the use of resources by the body to involve payments out of the Consolidated Fund of the United Kingdom to or for the benefit of that body. Examples of such bodies would include SportScotland (an NDPB funded entirely by the Scottish Executive) and the Higher Education Funding Council for Wales (also an NDPB, which provides funding to higher education institutions in Wales and is funded by the National Assembly for Wales). There is no intention of designating any body that is wholly funded from a devolved Consolidated Fund. Where, exceptionally, a UK government department were to make a payment to a body operating in a devolved area and largely funded by a devolved administration, the Treasury plans to agree administrative arrangements that would ensure such a body was not designated.
386. New section 4A(6) provides that if the conditions in section 4A(5) are met the Treasury must notify the relevant government department that the conditions are met and treat the body as though it were not designated for that year.
387. New section 4A(7) prevents the Treasury from making an order designating a body if the conditions in section 4A(5) are met and no order is already in force in relation to that body.
388. New section 4A(8) provides for the Treasury, where appropriate, to consult the Scottish Ministers, the Welsh Ministers or the Department of Finance and Personnel for Northern Ireland before designating a body or a description of body.
389. New section 4A(9) provides that in determining for any purpose whether a body has a particular relationship with a government department the fact that a departmental Supply Estimate includes information relating to that body, or departmental resource accounts include information relating to the body, is to be disregarded. This provision is intended to make it clear that designating a body does not of itself alter the existing relationship between that body and the government department.
390. New section 4A(10) provides that an order made by the Treasury under section 4A(3) must be made by statutory instrument.
391. New section 4A(11) provides that a statutory instrument containing such an order will be subject to the negative resolution procedure.
392. New section 4A(12) defines what is meant by ‘a devolved Consolidated Fund’ (see section 4A(5)).
393. Subsection (3) amends section 5(1) of the GRAA 2000. Section 5(1), as amended, will require a government department to include the resources acquired, held or disposed of by any designated body when preparing resource accounts.
394. Subsection (4) amends section 6(1) of the GRAA 2000. That section requires the Comptroller and Auditor General to satisfy himself of certain matters when examining any resource accounts which he receives from a department. Section 6(1), as amended, will require the Comptroller and Auditor General to satisfy himself, amongst other things, that the financial transactions of the department and the financial transactions of any designated body are in accordance with any relevant authority.
Clause 52: Corresponding provision in relation to Wales
395. Subsection (1) provides that the clause amends Part 5 of the Government of Wales Act 2006 (“GOWA 2006”).
396. Subsection (2) inserts a new section 126A into the GOWA 2006. Its provisions are as follows:
397. New section 126A(1) gives Welsh Ministers the power to include information relating to the use of resources by a designated body in a Budget Motion for the financial year.
398. New section 126A(2) provides Welsh Ministers with the power to designate bodies for these purposes. Ministers can designate individual bodies, or categories of bodies. Designation must be made by order.
399. New section 126A(3) provides for a body to be designated either for a particular financial year or generally.
400. New sections 126A(4) requires the Welsh Ministers to obtain the consent of the Treasury before designating any body that they expect will receive funding from a “relevant Consolidated Fund” in a particular financial year. Section 126A(5) defines a “relevant Consolidated Fund” as the UK Consolidated Fund, the Scottish Consolidated Fund or the Consolidated Fund of Northern Ireland.
401. New section 126A(6) requires the Welsh Ministers to consult with the Treasury before designating a body or a description of body, in cases where Treasury consent is not needed but the Welsh Ministers consider it appropriate to consult.
402. New section 126A(7) provides that in determining for any purpose whether a body has a particular relationship with a “relevant person”, the fact that the budget motion, or the “relevant person’s” resource accounts, include information relating to the body, is to be disregarded. This provision is intended to make it clear that designating a body does not of itself alter the existing relationship between that body and the Welsh Ministers (or other “relevant person”).
403. New section 126A(8) provides that an order made by the Welsh Minister under subsection (2) must be made by statutory instrument.
404. New section 126A(9) and (10) provides that a statutory instrument containing such an order will be subject to either the affirmative or negative resolution procedure in the Assembly. The choice of procedure will be made by Welsh Ministers as appropriate in recognition of their key budgetary responsibilities. For instance, the Welsh Ministers may choose to use the affirmative procedure where they are proposing major changes to designated bodies, and it is appropriate for the Assembly to have the opportunity to debate these fully; while Ministers may choose the negative procedure in cases where minor or uncontroversial amendments are to be made.
405. Subsection (3) provides that the clause amends Schedule 8 to the GOWA 2006.
406. Subsection (4) inserts a new paragraph 13(1A). Paragraph 13(1) of Schedule 8 to the GOWA 2006 provides that the Auditor General for Wales must, for each financial year, prepare accounts in accordance with directions given by the Treasury. The new paragraph 13(1A) provides that such directions to prepare accounts may include directions to prepare accounts relating to financial affairs and transactions of persons other than the Auditor General. This would allow the inclusion of information about bodies designated in relation to the Auditor General.
407. Subsection (5) amends paragraph 15 of Schedule 8 to the GOWA 2006, which relates to the audit of accounts prepared by the Auditor General. Subsection (5) makes consequential amendments to paragraph 15 to allow the auditors of the Auditor General for Wales’s accounts to obtain necessary information concerning transactions of designated bodies which are included in those accounts.
408. Subsection (6) amends paragraph 17(8) of Schedule 8 to the GOWA 2006 to allow the Auditor General for Wales to have access to documents and financial information relating to the financial affairs of any designated body included in the accounts of the Public Services Ombudsman for Wales.
409. Subsection (7) amends Schedule 1 to the Public Services Ombudsman (Wales) Act 2005. Paragraph 16(1) of that Schedule provides that the Ombudsman must, for each financial year, prepare accounts in accordance with directions given to him by the Treasury. Subsection (7) inserts a new paragraph 16(1A) to allow such directions to include directions to prepare accounts relating to financial affairs and transaction of persons other than the Ombudsman. This would allow the inclusion of information about bodies designated in relation to the Ombudsman.
PART 9: FINAL PROVISIONS
Clause 53: Meaning of “Minister of the Crown”
410. Clause 53 provides that the term “Minister of the Crown” in the Constitutional Reform and Governance Bill will have the same meaning as provided in the Ministers of the Crown Act 1975. This includes Secretaries of State but also, for example, the Attorney General, the Lord Chancellor and the Minister for the Civil Service.
Clause 54: Financial provision
411. Clause 54 provides that any expenditure incurred by a Minister of the Crown by virtue of the Act can be paid for out of money provided by Parliament.
Clause 55: Power to make consequential provision
412. Clause 55 contains a power to make changes to primary or secondary legislation in consequence of the Bill by order. Subsection (1) provides that the power can be exercised by a Minister of the Crown, or two or more Ministers acting jointly.
413. Subsection (2) provides that an order may amend, repeal or revoke provision in primary or secondary legislation and may include transitional, transitory or saving provisions. An order under this clause must be made by statutory instrument (subsection (3)). If it amends primary legislation, an order will be subject to the affirmative resolution procedure (subsection (4)). Any other order will be subject to negative resolution procedure (subsection (5)).
Clause 56: Extent, commencement, transitional provision and short title
414. Subsection (1) provides that Part 2 of the Bill (demonstrations in the vicinity of Parliament) extends to England and Wales only.
415. Subsection (2) provides that any other amendment or repeal made by the Bill will have the same extent as the Act or relevant part of the Act to which it relates.
416. Subsection (3) provides that the Act, apart from Part 9, will come into force on a day which a Minister of the Crown or two or more Ministers acting jointly, decide by order and that different provisions may be brought into force at different times.
417. Subsection (4) provides that a Minister of the Crown or two or more Ministers acting jointly may make an order making transitional, transitory or saving provisions in relation to the commencement of the provisions of the Act.
418. Subsection (5) provides that an order under subsection (3) or (4) must be made by statutory instrument.
419. Subsection (6) sets out the short title of the Bill.
FINANCIAL EFFECTS
420. The Constitutional Reform and Governance Bill provides for new statutory heads of expenditure, in particular, the establishment of the Civil Service Commission (clause 16), the powers to manage the Civil Service (clause 17) and the establishment of the new National Audit Office (clause 43). However, these new statutory heads of power are replacing non-statutory heads or, in the case of the National Audit Office, replacing a current statutory head of expenditure. There will thus be a minimal net impact on public expenditure.
PUBLIC SERVICE MANPOWER
421. The provisions contained with the Constitutional Reform and Governance Bill have no substantial effect on public service manpower.
IMPACT ASSESSMENT
422. The provisions contained in the Constitutional Reform and Governance Bill do not require an Impact Assessment.
EUROPEAN CONVENTION ON HUMAN RIGHTS
432. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act).
433. Jack Straw, the Secretary of State for Justice, made the following statement of compatibility in accordance with section 19:
“In my view the provisions of the Constitutional Reform and Governance Bill are compatible with the Convention rights.”
434. The following paragraphs deal with Convention rights issues raised by the Bill. Where in the Government’s view a Part does not give rise to any Convention rights issues it is omitted.
Part 1 - The Civil Service
435. Clause 2 gives effect to Schedule 1 which makes provision about the Commission. Paragraph 5 of the Schedule concerns the removal from the office of First Commissioner or Commissioner. Sub-paragraph (3) provides that Her Majesty may remove the First Commissioner or a Commissioner, on the recommendation of the Minister, if one of the conditions set out in sub-paragraph (4) is met. It is considered that the removal of the First Commissioner or Commissioner is likely to engage Article 6 ECHR (as it is likely to constitute the determination of a civil right within Article 6(1)). The Bill itself does not specify the procedure to be adopted in removing the First Commissioner or Commissioner from office. However, it is envisaged that the procedure will be specified in the terms of appointment. The decision of the Minister recommending removal would also be amenable to judicial review. It is considered that the combination of the procedure which will be set out in the terms of appointment and the possibility of judicial review of the decision of the Minister recommending removal, would satisfy the requirements of Article 6.
436. Given the limited impact that dismissal from the post of Commissioners will have on the personal life of the individual, dismissal is not thought to engage Article 8.
437. Paragraphs 26 and 28 of Schedule 2 preserve the terms and conditions of the First Civil Service Commissioner and Commissioners who are in office at the date of commencement. Consequently, Article 1 Protocol 1 is not thought to be engaged.
438. Clause 9 makes provision for civil servants to complain to the Commission about breaches of the codes and for the Commission to investigate breaches of the codes. The consideration of breaches of the codes by the Commission does not engage Article 6 ECHR as it does not involve the determination of a civil right within Article 6(1). The Codes will set out the standards of behaviour expected of civil servants based on the core values of the Civil Service rather than create any civil rights.
439. Clause 9 provides that civil servants may complain to the Commission where they believe that they are being required to act in a way which conflicts with the codes or where they believe that another civil servant has acted in a way which conflicts with the codes. However, the Commission’s role after consideration of a complaint or an investigation, is limited to making recommendations. In practice, these recommendations are likely to be made confidentially to the department and civil servants concerned. So even if it were concluded that the codes conferred on civil servants a right within the meaning of Article 6(1), the Commission’s role in making recommendations is not likely to be considered as determinative of that right.
440. It should be noted however, that subsection (5)(a) of clause 9 requires the Commission to determine the procedures for the purposes of an investigation or the making of complaints and for the investigation and consideration of complaints. Furthermore, the act of the Commission in making a recommendation would be amenable to judicial review. So it is considered that even if it were concluded that the Commission’s consideration of breaches of the codes constituted the determination of a civil right within Article 6(1), the combination of the procedures for consideration of such matters and the possibility of judicial review of the Commission’s decisions, would satisfy the requirements of Article 6.
441. Clause 13 makes provision for a person to complain to the Commission if he has reason to believe that a selection for appointment breached the requirement that selections be made on merit on the basis of a fair and open competition. The consideration of these complaints does not engage Article 6 ECHR as it does not involve the determination of a civil right within Article 6(1). In particular, selections for appointment do not amount to a civil right. However, the Commission’s role after considering the complaint is limited to making recommendations. In practice, these recommendations are likely to be made confidentially to the department and civil servants concerned. So even if it were concluded that there was a right within the meaning of Article 6(1), the Commission’s role in making recommendations is not likely to be considered as determinative of that right.
442. It should be noted however, that subsection (3)(b) of clause 13 requires the Commission to determine the procedures for the making of complaints and for the investigation and consideration of complaints. Furthermore, the Commission’s recommendations would be amenable to judicial review. So it is considered that even if it were concluded that the Commission’s consideration of complaints constituted the determination of a civil right within Article 6(1), the combination of the procedures for consideration of such matters and the possibility of judicial review of the Commission’s decisions, would satisfy the requirements of Article 6.
443. Clauses 9(6), 13(4) and 14(2) include provisions which enable the Commission to require that information be given to them if they reasonably require that information for the performance of their functions relating to complaints about conflicts with the Civil Service or Diplomatic Service Codes, recruitment competitions or carrying out reviews of recruitment practices. The requirement might result in personal data, for example about an individual's job application, being disclosed to the Commission. This could engage Article 8. However, it is considered that any personal data that is shared under these provisions will be done in a way that complies with Article 8 since it must be done in a way that complies with general information law principles - in particular the Data Protection Act 1998. As a result the data may only be shared in so far as is necessary for the purposes of the Commission's functions (for example, the data could be disclosed in an anonymised form unless it is necessary for the Commission to have information about the individual's identity). In so far as he Commission handles any personal data, they will be bound by general information law principles - including the Data Protection Act 1998 so that, for example, they will only be permitted to keep the data for as long as is necessary.
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