Clause 11 - Access to information, etc by Auditor General
Public Audit (Wales) Bill [Lords]
10:30 am
Mr Don Touhig (Parliamentary Under-Secretary (Wales), Department for Constitutional Affairs; Islwyn, Labour/Co-operative)
Amendment No. 20 would apply criminal sanctions to non-compliance with clause 11 access rights. This would apply to persons connected with the National Assembly, its sponsored public bodies, NHS bodies in Wales and other public bodies funded by the Assembly. These bodies are covered by accounting officer conventions. It would also apply to those who hold documents and information relating to the exercise of the Auditor General's functions in relation to bodies such as the Assembly-sponsored public bodies and health bodies in Wales. In the first instance the matter would be brought to the attention of the relevant body's accounting officer and then the National Assembly's Audit Committee.
The Committee would be able to call witnesses to seek an explanation. The Committee could issue and publish a report on the matter. The principal accounting officer of the National Assembly and the accounting officers of other public bodies in Wales are also required to give evidence to the Public Accounts Committee, if invited. Ultimately, an instance of non-compliance could result in the removal of accounting officer status. Withdrawal of that status could well result in the individual concerned not being able to continue in his or her job. There are no equivalent accounting officer conventions in the local government sector.
I am not aware of any instance in Wales where the imposition of criminal sanctions would have led to any more satisfactory resolution of access difficulties in the
context of clause 11 bodies. Criminal sanction provisions were not incorporated in the Auditor General's original access rights provision in the Government of Wales Act 1998. Lord Sharman also did not recommend the creation of criminal offence provisions in this context in his report. The Government are satisfied that the extended rights of access to documents and information under clause 11 could be secured either under the accounting officer conventions or by way of an application for judicial review.
In judicial review proceedings, where available, the Auditor General could seek a mandatory order, compelling the person, persons or body to comply. Alternatively, he could apply in the civil courts for a mandatory injunction to compel the performance of a duty to provide access. We consider those potential remedies to be formidable. For instance, a subcontractor would think twice about refusing to comply with the Auditor General's rights of access if faced with the prospects of litigation and the costs that would inevitably ensue. On that basis, the Government consider that it would not be appropriate or necessary to apply criminal sanctions in respect of the provisions of clause 11, which would create a criminal offence that would not exist in England. We have again sought a degree of consistency, recognising that there were differences in the earlier debate, and I hope that the hon. Gentleman will be satisfied with that.