The Public Audit (Wales) Act 2004 (Transfer of Property, Rights and Liabilities of the Comptroller and Auditor General) Order 2005

Statutory Instruments

2005 No. 552

PUBLIC AUDIT, ENGLAND AND WALES

The Public Audit (Wales) Act 2004 (Transfer of Property, Rights and Liabilities of the Comptroller and Auditor General) Order 2005

Made

4th March 2005

Laid before Parliament

10th March 2005

Coming into force

1st April 2005

Whereas the Secretary of State for Wales has consulted the Auditor General for Wales and the Comptroller and Auditor General as to the terms of this Order;

And whereas the National Assembly for Wales has consented to this Order being made;

Now, therefore, the Secretary of State for Wales, in exercise of the powers conferred upon him by sections 68 of, and paragraphs 1 and 2 of Schedule 3 to, the Public Audit (Wales) Act 2004(1) hereby makes the following Order:

Citation, commencement, extent and interpretation

1.—(1) This Order may be cited as the Public Audit (Wales) Act 2004 (Transfer of Property, Rights and Liabilities of the Comptroller and Auditor General) Order 2005 and shall come into force on 1^st April 2005.

(2) This Order extends to England and Wales.

(3) In this Order, “the transfer date” means 1^st April 2005.

Transfer of property, rights and liabilities to the Auditor General for Wales

2.—(1) Save as provided in paragraph 2, the following shall, on the transfer date, transfer to and vest in the Auditor General for Wales —

(a) all property, rights and liabilities to which the Comptroller and Auditor General was entitled or subject immediately before that date in relation to the premises at 3-4 Park Place, Cardiff, CF10 3DP leased to the Comptroller and Auditor General on 27^th August 2002 by Hollybush Properties Limited (“the NAO Cardiff office”), including all fixtures, fittings and trade fixtures at, in or on the NAO Cardiff office;

(b) the property in, and all rights and liabilities to which the Comptroller and Auditor General was entitled or subject immediately before that date in respect of, personal or other moveable property at, in or on the NAO Cardiff office; and

(c) the property in, and all rights and liabilities to which the Comptroller and Auditor General was entitled or subject immediately before that date in respect of, personal or other moveable property not included in sub-paragraph (b) and provided by the Comptroller and Auditor General for the use of those of his staff whose principal place of employment was, until immediately before that date, the NAO Cardiff office.

(2) The property mentioned in paragraph (1) shall not include any rights or liabilities of the Comptroller and Auditor General under any contract for the supply, use or maintenance of any information technology programmes.

(3) No right of pre-emption, forfeiture, reverter or similar right is to become exercisable as a result of a transfer of property under paragraph (1).

Transfer of staff to Auditor General for Wales

3.—(1) All the rights and liabilities (including the powers and duties) of the Comptroller and Auditor General under or in connection with any contract of employment –

(a) in force immediately before the transfer date; and

(b) made between the Comptroller and Auditor General and any person whose principal place of employment immediately before the transfer date was the NAO Cardiff office,

shall transfer to the Auditor General for Wales on the transfer date.

(2) For the purposes of paragraph (1) above, the rights and liabilities, powers and duties of the Comptroller and Auditor General in connection with any contract of employment to which paragraph (1) applies include any rights, liabilities, powers and duties under an agreement whereby the Comptroller and Auditor General agrees to lend monies to, or reimburse expenses incurred by, a member of his staff who is a party to such a contract of employment.

4.—(1) In this article, “the bonus” means the amount or amounts which would, but for the operation of article 3(1), have fallen to be paid by the Comptroller and Auditor General —

(a) to any person who was at the transfer date a party to a contract of employment to which article 3(1) applies;

(b) under the provisions (if any) of that person’s contract relating to non-pensionable bonuses designed to reward performance;

(c) in respect of the period beginning on 1^st April 2004 and ending on 31^st March 2005 (or any part thereof).

(2) The Comptroller and Auditor General shall, as soon as practicable after the transfer date, and in any event on or before 30^th September 2005, pay the Auditor General for Wales the amount equal to the total of all the bonuses.

Creation in favour of Auditor General for Wales of interest over property retained by the Comptroller and Auditor General

5.—(1) Subject to paragraph (2), the Auditor General for Wales is entitled to have access to, to copy and use, for whatever purpose, free of charge and in perpetuity, any intellectual property (in whatever form) created by or for the Comptroller and Auditor General before the transfer date.

(2) Nothing in this Order entitles or authorises the Auditor General for Wales to grant (whether for consideration or not) any third party any right over, or right to use or to copy, such intellectual property.

Transfer of, and access to, documents

6.—(1) The property in all documents (including documents in electronic form) in the possession or control of the Comptroller and Auditor General and relating wholly to —

(a) any property, rights and liabilities transferred to the Auditor General for Wales by article 2 or 3 of this Order; or

(b) any person (other than the Comptroller and Auditor General) who is a party to a contract of employment to which paragraph (1) of article 3 applies,

shall transfer to and vest in the Auditor General for Wales on the transfer date.

(2) The Comptroller and Auditor General shall be deemed to have given the Auditor General for Wales an acknowledgement in writing of the right of the Auditor General for Wales to the production of any document (including a document in electronic form) in the possession or control of the Comptroller and Auditor General and relating partly to —

(a) any property, rights and liabilities transferred to the Auditor General for Wales by article 2 or 3 of this Order; or

(b) any person (other than the Comptroller and Auditor General) who is a party to a contract of employment to which paragraph (1) of article 3 applies.

Peter Hain

Secretary of State for Wales

4th March 2005

Explanatory Note

(This note is not part of the Order)

This Order transfers property, rights and liabilities from the Comptroller and Auditor General to the Auditor General for Wales, in order to enable the latter to carry out his functions, including the new functions conferred on him by the Public Audit (Wales) Act 2004 (“the Act”). Hitherto, the resources necessary for the Auditor General for Wales to exercise his functions have been provided largely by the Comptroller and Auditor General, by virtue of arrangements made under section 92(1) of the Government of Wales Act 1998 (now repealed by the Act).

The Order is to take effect on 1 April 2005 (“the transfer date”).

Article 2 of the Order deals with leasehold property; incorporeal rights and liabilities, such as the benefit and burden of contracts; and moveable property.

Article 3 deals with the transfer of staff.

Article 4 is also concerned with staff. It provides for the Comptroller and Auditor General to reimburse the Auditor General for Wales (by 30 September 2005) for the amount of any bonuses paid, after the transfer date, to those of the Comptroller and Auditor General’s staff who transfer to the employ of the Auditor General for Wales, where the bonus represents a reward for performance in the twelve months before that date.

Article 5 concerns intellectual property, such as training packages, created by or for the Comptroller and Auditor General before the transfer date. It gives the Auditor General the right to use such property for an unlimited time, free of charge. However, the Auditor General will not be entitled to grant any third party rights over the property.

Article 6 contains provisions ensuring that documents concerning property, rights and liabilities, which are to transfer under the Order, will also transfer. In cases where documents deal both with property etc. that is to transfer and with property etc. that will not, rights of access for the appropriate party are created.

A copy of the lease referred to in article 2 of the Order may be inspected during office hours at the National Audit Office, Buckingham Palace Road, Victoria, London SW1W 9SP.

(1)

2004 c..23.