House of Lords portcullis
House of Lords
Session 2005 - 06
Internet Publications
Other Bills before Parliament

Government of Wales Bill


Government of Wales Bill
Schedule 8 — Auditor General for Wales

135

 

(a)   

the Treasury, and

(b)   

the Auditor General.

     (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

5

18    (1)  

Where—

(a)   

the Welsh Ministers are entitled to appoint the auditor of the

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,

10

           

the Welsh Ministers may appoint the Auditor General to be auditor of those

accounts.

      (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,

15

(b)   

for two or more years, or

(c)   

indefinitely until further exercise of the power of appointment.

      (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

20

effectiveness with which a person has used resources in discharging

the person’s functions,

           

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.

25

      (4)  

In determining how to exercise functions under paragraph (b) of sub-

paragraph (3) the Auditor General must take into account the Audit

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

30

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

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

35

under this Act) or prerogative instrument, or

(b)   

any other instrument or document,

           

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

40

be included in an order under sub-paragraph (5).

      (8)  

If the Treasury designate the Welsh Ministers in respect of a financial year

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.

45

 

 

Government of Wales Bill
Schedule 8 — Auditor General for Wales

136

 

      (9)  

Where the Treasury make arrangements with the Welsh Ministers under

subsection (8) of that section, the Auditor General must carry out the audit

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

5

unless a draft of the statutory instrument containing it has been laid before,

and approved by a resolution of, each House of Parliament.

     (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

10

resolution of either House of Parliament.

Reports in public interest

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,

15

the Auditor General may prepare a report on that matter.

      (2)  

This sub-paragraph applies to—

(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 135 or 140 of this Act, section

20

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

section 145A of that Act (studies for improving economy etc. in

services provided by relevant bodies), except one undertaken at the

request of the body or bodies to which it relates.

25

      (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

paragraph 17.

Certification of claims, returns etc.

30

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

paid to that body by the Welsh Ministers, any Minister of the Crown

or any public authority,

35

(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

the Welsh Ministers, the Minister of the Crown or the public

authority,

40

(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,

and for certifying the amount calculated, or

(d)   

certifying any return by that body which, by or under any enactment,

45

is required or authorised to be certified by the body’s auditor or

under arrangements made by the Auditor General.

 

 

Government of Wales Bill
Schedule 8 — Auditor General for Wales

137

 

      (2)  

In this paragraph—

“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

5

auditable accounts within the meaning of paragraph 17(7), or

(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

10

21    (1)  

Arrangements may be made between the Auditor General and a relevant

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

15

by the Auditor General to the authority or by the authority to the

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.

20

      (3)  

If the condition in sub-paragraph (4) is met, the Auditor General and—

(a)   

a relevant authority,

(b)   

a qualified auditor, or

(c)   

an accountancy body,

           

may make arrangements to co-operate with, and give assistance to, each

25

other.

      (4)  

The condition is that—

(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

30

question considers that to do so would facilitate, or be conducive to,

the exercise of the functions of that authority, person or body.

      (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.

35

      (6)  

In this paragraph—

“accountancy body” means—

(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,

40

“approved European body of accountants” means a body of

accountants which—

(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

45

order,

 

 

Government of Wales Bill
Schedule 9 — Devolution issues
Part 1 — Preliminary

138

 

“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 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

5

auditor under section 14 of the Public Audit (Wales) Act 2004 (c. 23)

(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

10

the holder of any public office.

      (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 149

 

Devolution issues

15

Part 1

Preliminary

1     (1)  

In this Schedule “devolution issue” means—

(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

20

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

Welsh Ministers, the First Minister or the Counsel General,

(c)   

a question whether the purported or proposed exercise of a function

25

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

purported or proposed exercise of a function is, or would be, outside

those powers by virtue of section 80(8) or 81(1)),

30

(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 80(1)

or (7)), or

(e)   

a question of whether a failure to act by the Welsh Ministers, the First

35

Minister or the Counsel General is incompatible with any of the

Convention rights.

      (2)  

In this Schedule “civil proceedings” means proceedings other than criminal

proceedings.

2          

A devolution issue is not to be taken to arise in any proceedings merely

40

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.

 

 

Government of Wales Bill
Schedule 9 — Devolution issues
Part 2 — Proceedings in England and Wales

139

 

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.

5

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.

10

      (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

15

Counsel General (unless a party to the proceedings).

      (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

20

6          

A magistrates’ court may refer any devolution issue which arises in civil

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—

25

(a)   

to a magistrates’ court, the Court of Appeal or the Supreme Court, or

(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

30

tribunal may make such a reference.

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

35

indictment.

 

 

Government of Wales Bill
Schedule 9 — Devolution issues
Part 3 — Proceedings in Scotland

140

 

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

5

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.

10

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

15

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.

      (3)  

This paragraph does not limit any power to institute or defend proceedings

20

exercisable apart from this paragraph by any person.

Intimation of devolution issue

14    (1)  

A court or tribunal must order intimation of any devolution issue which

arises in any proceedings before it to be given to the Advocate General for

Scotland and the Counsel General (unless a party to the proceedings).

25

      (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 higher court

15         

A court, other than any court consisting of three or more judges of the Court

30

of Session or the Supreme Court, may refer any devolution issue which

arises in civil proceedings before it to the Inner House of the Court of

Session.

16         

A tribunal from which there is no appeal must refer any devolution issue

which arises in proceedings before it to the Inner House of the Court of

35

Session; and any other tribunal may make such a reference.

 

 

Government of Wales Bill
Schedule 9 — Devolution issues
Part 4 — Proceedings in Northern Ireland

141

 

17         

A court, other than any court consisting of two or more judges of the High

Court of Justiciary, may refer any devolution issue which arises in criminal

proceedings before it to the High Court of Justiciary.

References from superior courts to Supreme Court

18         

Any court consisting of three or more judges of the Court of Session may

5

refer any devolution issue which arises in proceedings before it (otherwise

than on a reference under paragraph 15 or 16) to the Supreme Court.

19         

Any court consisting of two or more judges of the High Court of Justiciary

may refer any devolution issue which arises in proceedings before it

(otherwise than on a reference under paragraph 17) to the Supreme Court.

10

Appeals from superior courts to Supreme Court

20         

An appeal against a determination of a devolution issue by the Inner House

of the Court of Session on a reference under paragraph 15 or 16 lies to the

Supreme Court.

21         

An appeal against a determination of a devolution issue by—

15

(a)   

a court consisting of two or more judges of the High Court of

Justiciary (whether in the ordinary course of proceedings or on a

reference under paragraph 17), or

(b)   

a court consisting of three or more judges of the Court of Session

from which there is no appeal to the Supreme Court apart from this

20

paragraph,

           

lies to the Supreme Court, but only with permission of the court from which

the appeal lies or, failing such permission, with permission of the Supreme

Court.

Part 4

25

Proceedings in Northern Ireland

Application of Part 4

22         

This Part applies in relation to devolution issues in proceedings in Northern

Ireland.

Institution of proceedings

30

23    (1)  

Proceedings for the determination of a devolution issue may be instituted by

the Advocate General for Northern Ireland.

      (2)  

The Counsel General may defend any such proceedings instituted by the

Advocate General for Northern Ireland.

      (3)  

This paragraph does not limit any power to institute or defend proceedings

35

exercisable apart from this paragraph by any person.

Notice of devolution issue

24    (1)  

A court or tribunal must order notice of any devolution issue which arises in

any proceedings before it to be given to the Advocate General for Northern

Ireland and the Counsel General (unless a party to the proceedings).

40

 

 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2006
Revised 30 June 2006