Government of Wales Act 2006 (c. 32)

(The document as of February, 2008)

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(a) on behalf of the Committee of Public Accounts take evidence from the accounting officer for the Wales Audit Office, and

(b) report to the Committee of Public Accounts and transmit to that Committee any evidence so taken.

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 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

(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 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,

(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

(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 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 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--

(a) a relevant person,

(b) a document to which the right conferred by sub-paragraph (1) applies, or

(5) The Auditor General may, for the purposes of an examination of any 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.

(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 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 section 131, the Welsh Ministers, the Counsel General and any person to whose financial affairs and transactions the accounts are to relate by virtue of subsection (3) of that section,

(b) in a case within that paragraph relating to any accounts which the Assembly Commission is directed to prepare under section 137, the 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

(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.

(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 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.

(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

(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,

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 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 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,

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 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 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.

(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

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--

(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 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.

(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.

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,

(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,

(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, is required or authorised to be certified by the body's auditor or under arrangements made by the Auditor General.

(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 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

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 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.

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

(a) a relevant authority,

(b) a qualified auditor, or

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

(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,
"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 order,
"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 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 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.

Section 149

SCHEDULE 9 Devolution issues

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 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 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)),

(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 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 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.

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.

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.

(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 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

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--

(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 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 indictment.

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

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.

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

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 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).

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

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 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.

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--

(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 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 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

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 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).

(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 Court of Appeal

25 A court, other than the Court of Appeal in Northern Ireland or the Supreme Court, may refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland.

26 A tribunal from which there is no appeal must refer any devolution issue which arises in proceedings before it to the Court of Appeal in Northern Ireland; and any other tribunal may make such a reference.

References from Court of Appeal to Supreme Court

27 The Court of Appeal in Northern Ireland may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 25 or 26) to the Supreme Court.

Appeals from Court of Appeal to Supreme Court

28 An appeal against a determination of a devolution issue by the Court of Appeal in Northern Ireland on a reference under paragraph 25 or 26 lies to the Supreme Court but only--

(a) with permission of the Court of Appeal in Northern Ireland, or

(b) failing such permission, with permission of the Supreme Court.

Part 5 General

Direct references to Supreme Court

29 (1) The relevant officer may require any court or tribunal to refer to the Supreme Court any devolution issue which has arisen in any proceedings before it to which that person is a party.

(2) In sub-paragraph (1) "the relevant officer" means--

(a) in relation to proceedings in England and Wales, the Attorney General or the Counsel General,

(b) in relation to proceedings in Scotland, the Advocate General for Scotland, and

30 (1) The Attorney General or the Counsel General may refer to the Supreme Court any devolution issue which is not the subject of proceedings.

(2) Where a reference is made under sub-paragraph (1) by the Attorney General in relation to a devolution issue which relates to the proposed exercise of a function by the Welsh Ministers, the First Minister or the Counsel General--

(a) the Attorney General must notify the Counsel General of that fact, and

(b) the function must not be exercised by the Welsh Ministers, the First Minister or the Counsel General in the manner proposed during the period beginning with the receipt of the notification and ending with the reference being decided or otherwise disposed of.

Costs

31 (1) A court or tribunal before which any proceedings take place may take account of any additional expense of the kind mentioned in sub-paragraph (3) in deciding any question as to costs or expenses.

(2) In deciding any such question the court or tribunal may award the whole or part of the additional expense as costs or expenses to the party who incurred it (whatever the decision on the devolution issue).

(3) The additional expense is any additional expense which the court or tribunal considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of paragraph 5, 14 or 24.

Procedure of courts and tribunals

32 Any power to make provision for regulating the procedure before any court or tribunal includes power to make provision for the purposes of this Schedule including, in particular, provision--

(a) for prescribing the stage in the proceedings at which a devolution issue is to be raised or referred,

(b) for the staying or sisting of proceedings for the purpose of any proceedings under this Schedule, and

References to be for decision

33 Any function conferred by this Schedule to refer a devolution issue to a court is to be construed as a function of referring the issue to the court for decision.

Section 160

SCHEDULE 10 Minor and consequential amendments

Statutory Instruments Act 1946 (c. 36)

1 The Statutory Instruments Act 1946 is amended as follows.

2 In section 1 (definition of "statutory instrument"), for subsection (1A) substitute--

" (1A) Where by any Act power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on the Welsh Ministers and the power is expressed to be exercisable by statutory instrument, any document by which that power is exercised shall be known as a "statutory instrument" and the provisions of this Act shall apply to it accordingly. "

3 After section 11 insert--

" 11A Application in relation to Wales

(1) References in this Act to any Act include references to any Measure or Act of the National Assembly for Wales.

(2) Sections 4 to 7 and 8(1)(b) apply as if the references in them to--

(a) Parliament,

(b) either or each House of Parliament, or

include references to the National Assembly for Wales.

(3) In the application of subsection (1) of section 4 by virtue of subsection (2), the reference to the Speaker of the House of Commons and the Speaker of the House of Lords is to the Presiding Officer of the National Assembly for Wales.

(4) Where--

(a) by any Act it is provided that any statutory instrument shall be subject to annulment in pursuance of a resolution of the National Assembly for Wales, and

(b) a copy of the instrument is not laid before that Assembly at least 21 days before the instrument comes into operation,

notification shall be sent to the Presiding Officer of that Assembly when a copy of the instrument is laid before that Assembly drawing attention to the fact that a copy of it has not been laid before that Assembly at least 21 days before it comes into operation and explaining why.

(5) In the application of section 5 by virtue of subsection (2)--

(a) the reference in subsection (1) of that section to a resolution that an Address be presented praying that the instrument be annulled is to a resolution that the instrument be annulled,

(b) in a case where the instrument was made by the Welsh Ministers alone, the power in that subsection of Her Majesty to revoke the instrument by Order in Council is a power of the Welsh Ministers to revoke it by order made by statutory instrument which is to be laid before the National Assembly for Wales after being made, and

(c) the reference in subsection (2) of that section to an Act containing provisions of the kind mentioned in that subsection is to an Act which contains a power in relation to which such provisions apply by virtue of the Government of Wales Act 2006.

(6) In the application of section 6 by virtue of subsection (2) the reference in subsection (2) of that section to an Act which contains provisions of the kind mentioned in that subsection is to an Act which contains a power in relation to which such provisions apply by virtue of the Government of Wales Act 2006.

(7) In the application of section 7 by virtue of subsection (2) the reference in subsection (1) of that section to any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days is to any time during which the National Assembly for Wales is dissolved or is in recess for more than four days.

(8) References in this Act to the Welsh Ministers, other than the second reference in subsection (5)(b), include the First Minister for Wales and the Counsel General to the Welsh Assembly Government. "

Laying of Documents before Parliament (Interpretation) Act 1948 (c. 59)

4 In section 1 of the Laying of Documents before Parliament (Interpretation) Act 1948 (meaning of references to laying before Parliament), after subsection (1) insert--

" (1A) A reference in any enactment to laying any document before the National Assembly for Wales is (unless the contrary intention appears) to be construed as a reference to the taking, during any time when that Assembly is not dissolved, of such action as is specified in the standing orders of that Assembly as constituting the laying of a document before that Assembly, even if the action so specified consists (wholly or partly) of action capable of being taken when that Assembly is in recess. "

Defamation Act 1952 (c. 66)

5 In section 10 of the Defamation Act 1952 (limitation on privilege at elections), after "local government authority" insert ", to the National Assembly for Wales,".

Defamation Act (Northern Ireland) 1955 (c. 11 (N.I.))

6 In section 10(1) of the Defamation Act (Northern Ireland) 1955 (limitation on privilege at elections), after "Scottish Parliament" insert "or to the National Assembly for Wales".

Public Records Act 1958 (c. 51)

7 In the First Schedule to the Public Records Act 1958 (definition of "public records"), in the following provisions, for "the Government of Wales Act 1998" substitute "the Government of Wales Act 2006"--

(a) paragraph 2(2)(e),

(b) paragraph 5,

(d) paragraph 7(1).

Parliamentary Commissioner Act 1967 (c. 13)

8 In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc. subject to investigation), in the Note relating to the Environment Agency and the Note relating to the Forestry Commission, for "the Government of Wales Act 1998" substitute "the Government of Wales Act 2006".

Pensions (Increase) Act 1971 (c. 56)

9 In Part 2 of Schedule 2 to the Pensions (Increase) Act 1971 (official pensions), in paragraph 38B, for "section 18(2)(b) of the Government of Wales Act 1998" substitute "section 20(4)(b) or section 53(4)(b) of the Government of Wales Act 2006".

Local Government Act 1974 (c. 7)

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