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Government of Wales Bill


Government of Wales Bill
Schedule 7 — Acts of the Assembly
Part 3 — Exceptions from Part 2

125

 
 

Enactment

Provisions protected from modification

 
 

Data Protection Act 1998 (c. 29)

The whole Act

 
 

Government of Wales Act 1998 (c. 38)

Sections 144(7), 145, 145A and 146A(1)

 
 

Human Rights Act 1998 (c. 42)

The whole Act

 
 

Civil Contingencies Act 2004 (c. 36)

The whole Act

 

5

 

Re-Use of Public Sector Information

The whole set of Regulations

 
 

Regulations 2005 (S.I. 2005/1505)

  
 

3          

A provision of an Act of the Assembly cannot make modifications of, or

confer power by subordinate legislation to make modifications of, any

provision of an Act of Parliament other than this Act which requires sums

10

required for the repayment of, or the payment of interest on, amounts

borrowed by the Welsh Ministers to be charged on the Welsh Consolidated

Fund.

4          

A provision of an Act of the Assembly cannot make modifications of, or

confer power by subordinate legislation to make modifications of, any

15

functions of the Comptroller and Auditor General.

This Act

5     (1)  

A provision of an Act of the Assembly cannot make modifications of, or

confer power by subordinate legislation to make modifications of,

provisions contained in this Act.

20

      (2)  

Sub-paragraph (1) does not apply to sections 20, 22, 24, 36(1) to (5) and (7) to

(11), 53, 54, 145, 146, 147 and 155(2) to (5).

      (3)  

Sub-paragraph (1) does not apply to any provision—

(a)   

making modifications of so much of any enactment as is modified by

this Act, or

25

(b)   

repealing so much of any provision of this Act as amends any

enactment, if the provision ceases to have effect in consequence of

any provision of, or made under, an Act of the Assembly.

Part 3

Exceptions from Part 2

30

Functions of Ministers of the Crown

6     (1)  

Part 2 does not prevent a provision of an Act of the Assembly removing or

modifying, or conferring power by subordinate legislation to remove or

modify, any pre-commencement function of a Minister of the Crown if—

(a)   

the Secretary of State consents to the provision, or

35

(b)   

the provision is incidental to, or consequential on, any other

provision contained in the Act of the Assembly.

      (2)  

Part 2 does not prevent a provision of an Act of the Assembly conferring or

imposing, or conferring power by subordinate legislation to confer or

 

 

Government of Wales Bill
Schedule 8 — Auditor General for Wales

126

 

impose, any function on a Minister of the Crown if the Secretary of State

consents to the provision.

Comptroller and Auditor General

7          

Part 2 does not prevent a provision of an Act of the Assembly modifying, or

conferring power by subordinate legislation to modify, any enactment

5

relating to the Comptroller and Auditor General if the Secretary of State

consents to the provision.

Restatement

8          

Part 2 does not prevent an Act of the Assembly—

(a)   

restating the law (or restating it with such modifications as are not

10

prevented by that Part), or

(b)   

repealing or revoking any spent enactment,

           

or conferring power by subordinate legislation to do so.

Subordinate legislation

9          

Part 2 does not prevent an Act of the Assembly making modifications of, or

15

conferring power by subordinate legislation to make modifications of, an

enactment for or in connection with any of the following purposes—

(a)   

making different provision about the document by which a power to

make, confirm or approve subordinate legislation is to be exercised,

(b)   

making provision (or no provision) for the procedure, in relation to

20

the Assembly, to which legislation made in the exercise of such a

power (or the instrument or other document in which it is contained)

is to be subject, and

(c)   

applying any enactment comprised in or made under an Act of the

Assembly relating to the documents by which such powers may be

25

exercised.

Schedule 8

Section 144

 

Auditor General for Wales

Appointment

1     (1)  

The Auditor General is to be appointed by Her Majesty on the nomination

30

of the Assembly.

      (2)  

No nomination is to be made until the Assembly is satisfied that reasonable

consultation has been undertaken with such bodies as appear to the

Assembly to represent the interests of local government bodies in Wales.

      (3)  

For the purposes of sub-paragraph (2) a body is a local government body in

35

Wales at any time if at that time it is specified in section 12(1) of the Public

Audit (Wales) Act 2004 (c. 23).

      (4)  

The validity of any act of a person appointed as Auditor General is not

affected by any defect in the person’s nomination by the Assembly.

 

 

Government of Wales Bill
Schedule 8 — Auditor General for Wales

127

 

Tenure

2     (1)  

Subject as follows, a person appointed as Auditor General holds office until

the end of the period for which the person was appointed.

      (2)  

Her Majesty may relieve a person from office as Auditor General before the

end of the period for which the person was appointed—

5

(a)   

at the person’s request, or

(b)   

on Her Majesty being satisfied that the person is incapable for

medical reasons of performing the duties of the office and of

requesting to be relieved of it.

      (3)  

Her Majesty may remove a person from office as Auditor General before the

10

end of the period for which the person was appointed on the making of a

recommendation, on the ground of the person’s misbehaviour, that Her

Majesty should do so.

      (4)  

A recommendation for the removal of a person from office as Auditor

General may not be made unless—

15

(a)   

the Assembly has resolved that the recommendation should be

made, and

(b)   

the resolution of the Assembly is passed on a vote in which the

number of Assembly members voting in favour of it is not less than

two-thirds of the total number of Assembly seats.

20

Independence and status

3     (1)  

The Auditor General is not, in the exercise of any functions, subject to the

direction or control of the Assembly or the Welsh Assembly Government.

      (2)  

The Auditor General is not to be regarded as holding office under Her

Majesty or as exercising any functions on behalf of the Crown; but the

25

Auditor General is to be taken to be a Crown servant for the purposes of the

Official Secrets Act 1989 (c. 6).

Corporation sole

4          

The person for the time being holding the office of Auditor General shall by

the name of that office be a corporation sole.

30

Documents

5     (1)  

The application of the seal of the Auditor General is to be authenticated by

the signature of—

(a)   

the Auditor General, or

(b)   

any member of the Auditor General’s staff authorised by the Auditor

35

General (generally or specially) for that purpose.

      (2)  

A document purporting to be duly executed under the seal of the Auditor

General or to be signed on the Auditor General’s behalf may be received in

evidence and, unless the contrary is proved, is to be taken to be so executed

or signed.

40

Remuneration

6     (1)  

The Assembly must—

 

 

Government of Wales Bill
Schedule 8 — Auditor General for Wales

128

 

(a)   

pay the Auditor General such salary and any such allowances, and

(b)   

make any such payments towards the provision of superannuation

benefits for or in respect of the Auditor General,

           

as may be provided for by or under the terms of the Auditor General’s

appointment.

5

      (2)  

The Assembly must pay to or in respect of a person who has ceased to hold

office as Auditor General such amounts (if any) by way of—

(a)   

pension or gratuities, or

(b)   

provision for those benefits,

           

as may have been provided for by or under the terms of the Auditor

10

General’s appointment.

      (3)  

Schedule 1 to the Superannuation Act 1972 (c. 11) (offices to which section 1

of that Act applies) is to continue to have effect with the insertion in the list

of “Offices” of the entry relating to the Auditor General (originally made by

section 91(3) of the Government of Wales Act 1998 (c. 38)).

15

      (4)  

The Assembly must make payments to the Minister for the Civil Service, at

such times as the Minister for the Civil Service may determine, of such

amounts as may be so determined in respect of—

(a)   

the provision of pensions, allowances or gratuities by virtue of

section 1 of the Superannuation Act 1972 to or in respect of any

20

person who holds or has ceased to hold office as Auditor General,

and

(b)   

the expenses incurred in administering those pensions, allowances

and gratuities.

      (5)  

Sums required for the making of payments under sub-paragraphs (1), (2)

25

and (4) are to be charged on the Welsh Consolidated Fund.

Staff

7     (1)  

The Auditor General may appoint such staff or secure the provision of such

services as the Auditor General considers necessary for assisting in the

exercise of the Auditor General’s functions.

30

      (2)  

The staff of the Auditor General are to be appointed on such terms and

conditions as the Auditor General may determine.

      (3)  

The Auditor General must pay the staff such remuneration as may be

provided for by or under the terms of their appointment.

      (4)  

Schedule 1 to the Superannuation Act 1972 (offices to which section 1 of that

35

Act applies) is to continue to have effect with the insertion in the list of

“Other bodies” of the entry relating to Employment as a member of the staff

of the Auditor General (originally made by section 92(5) of the Government

of Wales Act 1998).

      (5)  

The Auditor General must make payments to the Minister for the Civil

40

Service, at such times as the Minister for the Civil Service may determine, of

such amounts as may be so determined in respect of—

(a)   

the provision of pensions, allowances or gratuities by virtue of

section 1 of the Superannuation Act 1972 to or in respect of any

persons who are or have been members of the staff of the Auditor

45

General, and

 

 

Government of Wales Bill
Schedule 8 — Auditor General for Wales

129

 

(b)   

the expenses incurred in administering those pensions, allowances

and gratuities.

      (6)  

No member of the staff of the Auditor General is to be regarded as holding

office under Her Majesty or as exercising any functions on behalf of the

Crown; but each member of the staff of the Auditor General is to be taken to

5

be a Crown servant for the purposes of the Official Secrets Act 1989 (c. 6)

Exercise of functions by staff etc.

8     (1)  

Any function of the Auditor General may be exercised by—

(a)   

a member of the Auditor General’s staff, or

(b)   

a person providing services to the Auditor General,

10

           

who is authorised by the Auditor General for that purpose.

      (2)  

Any function of the Auditor General may be exercised jointly by the Auditor

General and a person providing services to the Auditor General who is

authorised by the Auditor General for that purpose.

      (3)  

Any provision made under sub-paragraph (1) for the exercise of any

15

function does not affect the responsibility of the Auditor General on whose

behalf the function is exercised.

      (4)  

An authority under sub-paragraph (1) to certify or report on accounts (or

statements of accounts) within sub-paragraph (5)—

(a)   

extends only to accounts (or statements) which the Presiding Officer

20

has certified to the Assembly are accounts (or statements) which the

Auditor General is unable to certify, or on which the Auditor General

is unable to report, in person, and

(b)   

ceases when the office of Auditor General becomes vacant.

      (5)  

Accounts (or statements of accounts) are within this sub-paragraph if, in

25

accordance with provision made by or under this or any other Act, they—

(a)   

fall to be examined by the Auditor General, and

(b)   

are required to be laid before the Assembly.

Special finance provisions

9     (1)  

Any sums payable by the Auditor General in consequence of a breach, in the

30

performance of any of the Auditor General’s functions, of any contractual or

other duty are to be charged on the Welsh Consolidated Fund.

      (2)  

And sub-paragraph (1) applies whether the breach occurs by reason of an act

or omission of—

(a)   

the Auditor General,

35

(b)   

a member of the Auditor General’s staff, or

(c)   

any other person assisting the Auditor General in the exercise of the

Auditor General’s functions.

      (3)  

The Auditor General may retain income within sub-paragraph (4) (rather

than pay it into the Welsh Consolidated Fund) for use in connection with the

40

exercise of the functions conferred or imposed by—

(a)   

Part 1 of the Local Government Act 1999 (c. 27) (best value audits and

inspections), or

 

 

Government of Wales Bill
Schedule 8 — Auditor General for Wales

130

 

(b)   

Part 2 of the Public Audit (Wales) Act 2004 (c. 23) (local government

audit).

      (4)  

The following income is within this sub-paragraph—

(a)   

fees charged by the Auditor General by virtue of Part 1 of the Local

Government Act 1999 (c. 27),

5

(b)   

grants made to the Auditor General under section 33(3)(b) of that

Act, and

(c)   

fees charged by the Auditor General by virtue of Part 2 of the Public

Audit (Wales) Act 2004 (including those charged as a result of

paragraph 11(3)(c)).

10

Borrowing

10         

The Auditor General may borrow sums in sterling (by way of overdraft or

otherwise) to be applied for the purpose of meeting a temporary excess of

expenditure over sums otherwise available to meet it.

Fees

15

11    (1)  

The Auditor General may charge a fee for auditing a person’s accounts.

      (2)  

Where the Auditor General—

(a)   

provides services under paragraph 18(3)(b) by carrying out an

examination in relation to a person, or

(b)   

provides services under section 145A of the Government of Wales

20

Act 1998 (c. 38) (studies for improving economy etc. in services) at

the request of a person,

           

the Auditor General may charge the person a fee not exceeding the full cost

of providing those services.

      (3)  

Where the Auditor General—

25

(a)   

provides services to a body under paragraph 20,

(b)   

provides services at the request of a body under section 145B of the

Government of Wales Act 1998 (studies at request of educational

bodies), or

(c)   

provides services at the request of a body under section 44 of the

30

Public Audit (Wales) Act 2004 (studies at request of local

government bodies in Wales),

           

the Auditor General must charge that body a fee which covers the full cost

of providing those services.

Estimates

35

12    (1)  

For each financial year the Auditor General must—

(a)   

prepare an estimate of the income and expenses of the office of

Auditor General, and

(b)   

submit the estimate to the Audit Committee.

      (2)  

Each estimate must be submitted to the Audit Committee at least five

40

months before the beginning of the financial year to which it relates.

      (3)  

The Audit Committee must—

(a)   

examine each estimate submitted to it, and

 

 

Government of Wales Bill
Schedule 8 — Auditor General for Wales

131

 

(b)   

(having done so) lay the estimate before the Assembly with any

modifications which the Audit Committee considers appropriate.

      (4)  

Before laying an estimate before the Assembly with modifications the Audit

Committee must—

(a)   

consult the Auditor General, and

5

(b)   

take into account any representations which the Auditor General

may make.

      (5)  

Nothing in this paragraph authorises the Audit Committee—

(a)   

to examine that part of any estimate which relates to estimated

income or expenses of the office of Auditor General to which sub-

10

paragraph (6) applies, or

(b)   

to lay an estimate before the Assembly with modifications relating to

such estimated income or expenses.

      (6)  

This sub-paragraph applies to estimated income or expenses relating to—

(a)   

Part 1 of the Local Government Act 1999 (c. 27) (best value audits and

15

inspections),

(b)   

section 33(3)(b) of that Act (grants to the Auditor General), or

(c)   

Part 2 of the Public Audit (Wales) Act 2004 (c. 23) (local government

audit), apart from section 44.

Accounts

20

13    (1)  

The Auditor General must, for each financial year, prepare accounts in

accordance with directions given to the Auditor General by the Treasury.

      (2)  

The directions which the Treasury may give under sub-paragraph (1)

include, in particular, directions as to—

(a)   

the information to be contained in the accounts and the manner in

25

which it is to be presented,

(b)   

the methods and principles in accordance with which the accounts

are to be prepared, and

(c)   

the additional information (if any) that is to accompany the accounts.

Auditor

30

14    (1)  

The Assembly must appoint an auditor of the accounts of the Auditor

General.

      (2)  

A person is eligible for appointment under this paragraph only if the

person—

(a)   

is eligible for appointment as a company auditor under section 25 of

35

the Companies Act 1989 (c. 40), or

(b)   

is a member of an approved European body of accountants.

      (3)  

An “approved European body of accountants” is a body of accountants

which—

(a)   

is established in the United Kingdom or another state which is either

40

a member State or a non-member EEA State, and

(b)   

is for the time being approved by the Welsh Ministers by order.

      (4)  

“Non-member EEA State” means any State which is a Contracting Party to

the Agreement on the European Economic Area signed at Oporto on 2nd

 

 

 
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