Public Bodies Bill (HC Bill 188)

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Powers of Welsh Ministers: supplementary

17 Purpose and conditions for orders made by Welsh Ministers

(1) The Welsh Ministers may make an order under section 13 or 14 only if they

consider that the order serves the purpose of improving the exercise of public

5functions having regard to—

(a) efficiency,

(b) effectiveness,

(c) economy, and

(d) securing appropriate accountability to the Welsh Ministers.

(2) 10The Welsh Ministers may make an order under either of those sections only if

they consider that—

(a) the order does not remove any necessary protection, and

(b) the order does not prevent any person from continuing to exercise any

right or freedom which that person might reasonably expect to

15continue to exercise.

18 Consent of UK Ministers

(1) The Secretary of State’s consent is required for an order under section 13 or 14

which transfers a function to, or confers a function on—

(a) the Environment Agency,

(b) 20the Forestry Commissioners, or

(c) any other cross-border operator.

(2) The Secretary of State’s consent is required for an order under section 13 or 14

made by virtue of section 15 which in any other way modifies the functions,

other than Welsh devolved functions, of a person referred to in subsection (1).

(3) 25A Minister’s consent is required for an order under section 13 or 14 which

transfers a function to, or modifies the functions of, the Minister.

19 Consultation by Welsh Ministers

(1) Where the Welsh Ministers propose to make an order under sections 13 to 16

they must consult—

(a) 30any body or person exercising public functions to which the proposal

relates,

(b) such other persons as appear to them to be representative of interests

substantially affected by the proposal, and

(c) such other persons as they consider appropriate.

(2) 35If, as a result of consultation under subsection (1), it appears to the Welsh

Ministers appropriate to change the whole or part of the proposal, they must

carry out such further consultation with respect to the changes as seems

appropriate.

(3) It is immaterial for the purposes of this section whether consultation is carried

40out before or after the commencement of this section.

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20 Procedure for orders by Welsh Ministers etc

(1) If after consultation under section 19 the Welsh Ministers consider it

appropriate to proceed with the making of an order under sections 13 to 16, the

Welsh Ministers may lay before the National Assembly for Wales—

(a) 5a draft order, and

(b) an explanatory document.

(2) The explanatory document must—

(a) introduce and give reasons for the order,

(b) explain, in the case of an order under section 13 or 14, why the Welsh

10Ministers consider that—

(i) the order serves the purpose in section 17(1), and

(ii) the conditions in section 17(2)(a) and (b) are satisfied, and

(c) contain a summary of representations received in the consultation.

(3) The Welsh Ministers may not act under subsection (1) before the end of the

15period of twelve weeks beginning with the day on which the consultation

began.

(4) Subject as follows, if after the expiry of the 40-day period the draft order laid

under subsection (1) is approved by a resolution of the National Assembly for

Wales, the Welsh Ministers may make an order in the terms of the draft order.

(5) 20The procedure in subsections (6) to (9) shall apply to the draft order instead of

the procedure in subsection (4) if—

(a) the National Assembly for Wales so resolves within the 30-day period,

or

(b) a committee of the Assembly charged with reporting on the draft order

25so recommends within the 30-day period and the Assembly does not by

resolution reject the recommendation within that period.

(6) The Welsh Ministers must have regard to—

(a) any representations,

(b) any resolution of the National Assembly for Wales, and

(c) 30any recommendations of a committee of the Assembly charged with

reporting on the draft order,

made during the 60-day period with regard to the draft order.

(7) If after the expiry of the 60-day period the draft order is approved by a

resolution of the National Assembly for Wales, the Welsh Ministers may make

35an order in the terms of the draft order.

(8) If after the expiry of the 60-day period the Welsh Ministers wish to proceed

with the draft order but with material changes, the Welsh Ministers may lay

before the National Assembly for Wales—

(a) a revised draft order, and

(b) 40a statement giving a summary of the changes proposed.

(9) If the revised draft order is approved by a resolution of the National Assembly

for Wales, the Welsh Ministers may make an order in the terms of the revised

draft order.

(10) For the purposes of this section an order is made in the terms of a draft order

45or revised draft order if it contains no material changes to its provisions.

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(11) An order may not be made by the Secretary of State under section 15(6) unless

a draft of the instrument containing the order has been laid before, and

approved by a resolution of, each House of Parliament.

Restrictions on powers of Ministers and Welsh Ministers

21 5Restriction on creation of functions

(1) An order under the preceding provisions of this Act may not create or

authorise the creation of—

(a) a power to make subordinate legislation,

(b) a power of forcible entry, search or seizure, or

(c) 10a power to compel the giving of evidence.

(2) Subsection (1) does not prevent an order from repealing and re-enacting a

power.

22 Restriction on transfer and delegation of functions

(1) An order under the preceding provisions of this Act may not transfer any

15function to—

(a) a charity, or

(b) a person not otherwise exercising public functions who is not a charity,

unless the charity or person has consented.

(2) An order under the preceding provisions of this Act may not—

(a) 20transfer an excluded function to a person not otherwise exercising

public functions, or

(b) authorise arrangements for an excluded function to be exercised by

such a person.

(3) In subsection (2) “excluded function” means—

(a) 25a function of a tribunal exercising the judicial power of the State,

(b) a power to make subordinate legislation,

(c) a power of forcible entry, search or seizure,

(d) a power to compel the giving of evidence, or

(e) any other function the exercise or non-exercise of which would

30necessarily interfere with, or otherwise affect, the liberty of an

individual.

23 Restriction on creation of criminal offences

(1) An order under the preceding provisions of this Act may not, in relation to any

transfer or modification of functions, create or authorise the creation of a

35criminal offence that is punishable—

(a) on indictment, with imprisonment for a term exceeding two years, or

(b) on summary conviction, with—

(i) imprisonment for a term exceeding the normal maximum term,

or

(ii) 40a fine exceeding level 5 on the standard scale.

(2) In subsection (1)(b)(i) “the normal maximum term” means—

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(a) in relation to England and Wales—

(i) in the case of a summary offence, 51 weeks, and

(ii) in the case of an offence triable either way, twelve months;

(b) in relation to Scotland—

(i) 5in the case of an offence triable only summarily, six months, and

(ii) in the case of an offence triable either summarily or on

indictment, twelve months;

(c)

in relation to Northern Ireland, six months.

(3) In Scotland, in the case of an offence which, if committed by an adult, is triable

10either on indictment or summarily and is not an offence triable on indictment

only by virtue of—

(a) Part 5 of the Criminal Justice Act 1988, or

(b) section 292(6) and (7) of the Criminal Procedure (Scotland) Act 1995,

the reference in subsection (1)(b)(ii) to a fine exceeding level 5 on the standard

15scale is to be construed as a reference to the statutory maximum.

(4) In England and Wales—

(a) in the case of a summary offence committed before the coming into

force of section 281(5) of the Criminal Justice Act 2003, the reference in

subsection (2)(a)(i) to 51 weeks is to be read as a reference to six months,

20and

(b) in the case of an offence triable either way which is committed before

the coming into force of section 154(1) of that Act, the reference in

subsection (2)(a)(ii) to twelve months is to be read as a reference to six

months.

(5) 25Subsection (1) does not prevent an order from repealing and re-enacting a

criminal offence.

Transfer of property, rights and liabilities

24 Transfer schemes

(1) A scheme for the transfer of property, rights and liabilities (a “transfer

30scheme”) may be made by—

(a) a Minister, in connection with an order under sections 1 to 5;

(b) the Welsh Ministers, in connection with an order under section 13 or 14.

(2) In the case of a transfer scheme under subsection (1)(a), property, rights and

liabilities must be transferred to —

(a) 35a Minister, where the scheme is made in connection with an order

under section 3 or 4 (modification of constitutional or funding

arrangements), or

(b) an eligible person or a body corporate, in any other case.

(3) In the case of a transfer scheme under subsection (1)(b), property, rights and

40liabilities must be transferred to—

(a) the Welsh Ministers,

(b) a person exercising Welsh devolved functions, or

(c) a body corporate.

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(4) A transfer scheme may not transfer anything to a charity unless it has

consented.

(5) The things that may be transferred under a transfer scheme include—

(a) property, rights and liabilities that could not otherwise be transferred;

(b) 5property acquired, and rights and liabilities arising, after the making of

the scheme.

(6) A transfer scheme may make consequential, supplementary, incidental or

transitional provision and may in particular—

(a) create rights, or impose liabilities, in relation to property or rights

10transferred;

(b) make provision about the continuing effect of things done by the

transferor in respect of anything transferred;

(c) make provision about the continuation of things (including legal

proceedings) in the process of being done by, on behalf of or in relation

15to the transferor in respect of anything transferred;

(d) make provision for references to the transferor in an instrument or

other document in respect of anything transferred to be treated as

references to the transferee;

(e) make provision for the shared ownership or use of property;

(f) 20if the TUPE regulations do not apply in relation to the transfer, make

provision which is the same or similar.

(7) A transfer scheme may provide—

(a) for modification by agreement;

(b) for modifications to have effect from the date when the original scheme

25came into effect.

(8) For the purposes of this section—

(a) an individual who holds employment in the civil service is to be treated

as employed by virtue of a contract of employment, and

(b) the terms of the individual’s employment in the civil service are to be

30regarded as constituting the terms of the contract of employment.

(9) In this section—

  • “civil service” means the civil service of the State;

  • “TUPE regulations” means the Transfer of Undertakings (Protection of

    Employment) Regulations 2006 (SI 2006/246SI 2006/246);

  • 35references to rights and liabilities include rights and liabilities relating to

    a contract of employment;

  • references to the transfer of property include the grant of a lease.

25 Transfer schemes: procedure

(1) A transfer scheme made by a Minister under section 24(1)(a) may be included

40in an order under sections 1 to 5; but if not so included must be laid before

Parliament after being made.

(2) A transfer scheme made by the Welsh Ministers under section 24(1)(b) may be

included in an order under section 13 or 14; but if not so included must be laid

before the National Assembly for Wales after being made.

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(3) The Secretary of State’s consent is required for a transfer scheme under section

24(1)(b) transferring anything from or to the Environment Agency or the

Forestry Commissioners or a cross-border operator.

26 Transfer schemes: taxation

(1) 5The Treasury may by order make provision varying the way in which a

relevant tax has effect in relation to—

(a) anything transferred under a scheme under section 24, or

(b) anything done for the purposes of, or in relation to, a transfer under

such a scheme.

(2) 10The provision which may be made under subsection (1)(a) includes in

particular provision for—

(a) a tax provision not to apply, or to apply with modifications, in relation

to anything transferred;

(b) anything transferred to be treated in a specified way for the purposes

15of a tax provision;

(c) the person making the scheme to be required or permitted, with the

consent of the Treasury, to determine, or specify the method for

determining, anything which needs to be determined for the purposes

of any tax provision so far as relating to anything transferred.

(3) 20The provision which may be made under subsection (1)(b) includes in

particular provision for—

(a) a tax provision not to apply, or to apply with modifications, in relation

to anything done for the purposes of or in relation to the transfer;

(b) anything done for the purposes of, or in relation to, the transfer to have

25or not have a specified consequence or be treated in a specified way;

(c) the person making the scheme to be required or permitted, with the

consent of the Treasury to determine, or specify the method for

determining, anything which needs to be determined for the purposes

of any tax provision so far as relating to anything done for the purposes

30of, or in relation to, the transfer.

(4) An order under this section is subject to annulment in pursuance of a

resolution of the House of Commons.

(5) In this section—

  • “relevant tax” means income tax, corporation tax, capital gains tax, stamp

    35duty or stamp duty reserve tax;

  • “tax provision” means a provision of an enactment about a relevant tax;

  • references to the transfer of property include the grant of a lease.

Superannuation

27 Scope of power to amend Schedule 1 to Superannuation Act 1972

40In section 1 of the Superannuation Act 1972 (superannuation schemes as

respects civil servants etc), in subsection (6) (restriction on addition to Schedule

1), after “unless” there is inserted “at the date from which the addition has

effect”.

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Final

28 Orders: supplementary

(1) An order under this Act must be made by statutory instrument.

(2) The provision which may be made by an order under this Act may be made by

5repealing, revoking or amending an enactment (whenever passed or made).

(3) The powers conferred by this Act are without prejudice to any other power

conferred on a Minister or the Welsh Ministers.

(4) If the draft of an instrument containing an order under this Act (alone or with

other provision) would, apart from this section, be a hybrid instrument for the

10purposes of the standing orders of either House of Parliament, it is to proceed

in that House as if it were not such an instrument.

29 Interpretation

(1) In this Act—

  • “charity” has the meaning given in section 1(1) of the Charities Act 2006;

  • 15“constitutional arrangements” is to be construed in accordance with

    section 3(2) and (3);

  • “cross-border operator” means a person exercising functions or carrying

    on activities in or with respect to Wales (or any part of it) and England

    (or any part of it), but does not include—

    (a)

    20an internal drainage board, or

    (b)

    a Regional Flood and Coastal Committee established under

    section 22(1)(c) of the Flood and Water Management Act 2010;

  • “eligible person” has the meaning given in section 1(3);

  • “enactment” means any primary or subordinate legislation;

  • 25“Minister” means—

    (a)

    a Minister of the Crown (as defined by section 8 of the Ministers

    of the Crown Act 1975), or

    (b)

    the Commissioners for Her Majesty’s Revenue and Customs;

  • “modify”, in relation to functions, is to be construed in accordance with

    30section 5(2);

  • “modify”, in relation to funding arrangements, is to be construed in

    accordance with section 4(2);

  • “primary legislation” means any Act, Act of the Scottish Parliament,

    Northern Ireland legislation or Measure or Act of the National

    35Assembly for Wales;

  • “public function” means a function conferred under an enactment or royal

    charter;

  • “subordinate legislation” means an instrument made under primary

    legislation;

  • 40“Wales” has the same meaning as in the Government of Wales Act 2006;

  • “Welsh devolved function” means—

    (a)

    a function conferred under an Act or Measure of the National

    Assembly for Wales,

    (b)

    a function which is exercisable in or as regards Wales and could

    45be conferred by an Act of the Assembly, or

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    (c)

    a function in relation to which a function (other than a function

    of being consulted) is exercisable by the Welsh Ministers, the

    First Minister or the Counsel General to the Welsh Assembly

    Government,

    5and references to a person exercising a Welsh devolved function do not

    include a person exercising such a function by virtue of arrangements

    under section 16.

(2) In this Act, references to the “30-day”, “40-day” and “60-day” periods in

relation to any draft order are to the periods of 30, 40 and 60 days beginning

10with the day on which the draft order was laid before Parliament or the

National Assembly for Wales.

(3) For the purposes of subsection (2) in relation to an order laid before Parliament

no account is to be taken of any time during which Parliament is dissolved or

prorogued or during which either House is adjourned for more than four days.

(4) 15For the purposes of subsection (2) in relation to an order laid before the

National Assembly for Wales, no account is to be taken of any time during

which the Assembly is dissolved or is in recess for more than four days.

30 Extent

(1) This Act extends to England and Wales, Scotland and Northern Ireland.

(2) 20An order under this Act which repeals, revokes or amends an enactment

extending to any other jurisdiction may also extend there.

31 Commencement

This Act comes into force at the end of the period of two months beginning

with the day on which it is passed.

32 25Short title

(1) This Act may be cited as the Public Bodies Act 2011.



(2)

Nothing in this Act shall impose any charge on the people or on public

funds, or vary the amount or incidence of or otherwise alter any such charge

30in any manner, or affect the assessment, levying, administration or

application of any money raised by any such charge.

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SCHEDULES

Section 1

SCHEDULE 1 Power to abolish: bodies and offices

Administrative Justice and Tribunals Council.

5Advisory Committee on Hazardous Substances (established under section

140(5) of the Environmental Protection Act 1990).

Advisory Committee on Pesticides and Advisory Committee on Pesticides

for Northern Ireland (bodies established under section 16(7) of the Food and

Environment Protection Act 1985).

10Agricultural dwelling-house advisory committees for areas in England.

Agricultural Wages Board for England and Wales.

Agricultural wages committees for areas in England.

Aircraft and Shipbuilding Industries Arbitration Tribunal.

British Shipbuilders and any subsidiary of British Shipbuilders (within the

15meaning of section 1159 of the Companies Act 2006).

BRB (Residuary) Limited.

Child Maintenance and Enforcement Commission.

Commission for Rural Communities.

Committee on Agricultural Valuation (the body established under section 92

20of the Agricultural Holdings Act 1986).

Competition Service.

Courts boards.

Crown Court Rule Committee.

Disability Living Allowance Advisory Board.

25Disabled Persons Transport Advisory Committee.

Environment Protection Advisory Committees established under section 12

of the Environment Act 1995 other than the one established pursuant to

subsection (6) of that section (Wales).

Food from Britain.

30Football Licensing Authority.

Home Grown Timber Advisory Committee.

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Inland Waterways Advisory Council.

Her Majesty’s Inspectorate of Court Administration.

Library Advisory Council for England.

Magistrates’ Courts Rule Committee (established under section 144 of the

5Magistrates’ Courts Act 1980).

National Consumer Council (“Consumer Focus”).

National Endowment for Science, Technology and the Arts.

Plant Varieties and Seeds Tribunal.

Public Guardian Board.

10Railway Heritage Committee.

Regional and local fisheries advisory committees established under section

13 of the Environment Act 1995 other than the one established pursuant to

subsection (5) of that section (Wales).

Regional development agency for the East Midlands.

15Regional development agency for the Eastern Region.

Regional development agency for the North East.

Regional development agency for the North West.

Regional development agency for the South East.

Regional development agency for the South West.

20Regional development agency for the West Midlands.

Regional development agency for Yorkshire and the Humber.

Valuation Tribunal Service.

Victims’ Advisory Panel.

NOTES

1 25For the purposes of making a transfer scheme under section 24 in relation to

the abolition of British Shipbuilders—

(a) a subsidiary of British Shipbuilders dissolved before the coming into

force of the scheme is to be treated as not having been dissolved, and

(b) the scheme may make provision for the transfer of liabilities as if the

30subsidiary had not been dissolved.

2 For the purposes of the abolition of a regional development agency, the

power in section 1(2) includes power to transfer a function of the agency to

any body corporate.

3 In this Schedule, references to a regional development agency are to a

35development agency established under the Regional Development Agencies

Act 1998.