Public Bodies Bill (HC Bill 234)

(a) the Environment Agency;

(b) the Forestry Commissioners;

(c) any other person exercising Welsh devolved functions relating to the
environment.

(3) 5The Welsh Ministers may by order make provision about how the function of
making arrangements under subsection (1) is to be discharged (including
provision about the extent to which a fee may be charged in respect of anything
done under the arrangements).

(4) The Secretary of State’s consent is required for arrangements under this section
10involving, or an order under subsection (3) which affects—

(a) the Environment Agency,

(b) the Forestry Commissioners, or

(c) any other cross-border operator.

Powers of Welsh Ministers: supplementary

17 15Purpose 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
functions having regard to—

(a) efficiency,

(b) 20effectiveness,

(c) economy, and

(d) securing appropriate accountability to the Welsh Ministers.

(2) The Welsh Ministers may make an order under either of those sections only if
they consider that—

(a) 25the 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
continue to exercise.

18 Consent of UK Ministers

(1) 30The 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) the Forestry Commissioners, or

(c) any other cross-border operator.

(2) 35The 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) A 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) any body or person exercising public functions to which the proposal
5relates,

(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) If, as a result of consultation under subsection (1), it appears to the Welsh
10Ministers 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
out before or after the commencement of this section.

(4) 15Subsection (1)(a) does not apply to a body with no members or an office which
is vacant; and, where a body is consulted under that provision, any vacancy in
its membership is immaterial.

20 Procedure for orders by Welsh Ministers etc

(1) If after consultation under section 19 the Welsh Ministers consider it
20appropriate 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) a draft order, and

(b) an explanatory document.

(2) The explanatory document must—

(a) 25introduce and give reasons for the order,

(b) explain, in the case of an order under section 13 or 14, why the Welsh
Ministers 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) 30contain a summary of representations received in the consultation.

(3) The Welsh Ministers may not act under subsection (1) before the end of the
period 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
35under 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) The 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,
40or

(b) a committee of the Assembly charged with reporting on the draft order
so 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) 45any representations,

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

(c) any 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) 5If 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
an 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
10before the National Assembly for Wales—

(a) a revised draft order, and

(b) a 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
15draft order.

(10) For the purposes of this section an order is made in the terms of a draft order
or revised draft order if it contains no material changes to its provisions.

(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
20approved by a resolution of, each House of Parliament.

Restrictions on powers of Ministers and Welsh Ministers

21 Restriction on creation of functions

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

(a) 25a power to make subordinate legislation,

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

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

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

22 30Restriction on transfer and delegation of functions

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

(a) a charity, or

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

35unless the charity or person has consented.

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

(a) transfer an excluded function to a person not otherwise exercising
public functions, or

(b) authorise arrangements for an excluded function to be exercised by
40such a person.

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

(a) a 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
5necessarily 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
10criminal 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) 15a fine exceeding level 5 on the standard scale.

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

(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) 20in relation to Scotland—

(i) in 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) 25In Scotland, in the case of an offence which, if committed by an adult, is triable
either 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,

30the reference in subsection (1)(b)(ii) to a fine exceeding level 5 on the standard
scale 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
35subsection (2)(a)(i) to 51 weeks is to be read as a reference to six months,
and

(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
40months.

(5) Subsection (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
scheme”) may be made by—

(a) 5a 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) a Minister, where the scheme is made in connection with an order
10under 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
liabilities must be transferred to—

(a) 15the Welsh Ministers,

(b) a person exercising Welsh devolved functions, or

(c) a body corporate.

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

(5) 20The things that may be transferred under a transfer scheme include—

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

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

(6) A transfer scheme may make consequential, supplementary, incidental or
25transitional provision and may in particular—

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

(b) make provision about the continuing effect of things done by the
transferor in respect of anything transferred;

(c) 30make provision about the continuation of things (including legal
proceedings) in the process of being done by, on behalf of or in relation
to 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
35references to the transferee;

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

(f) if 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) 40for modification by agreement;

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

(8) For the purposes of this section—

(a) an individual who holds employment in the civil service is to be treated
45as employed by virtue of a contract of employment, and

(b) the terms of the individual’s employment in the civil service are to be
regarded as constituting the terms of the contract of employment.

(9) In this section—

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

• 5“TUPE regulations” means the Transfer of Undertakings (Protection of
  Employment) Regulations 2006 (SI 2006/246SI 2006/246);

• references 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 10Transfer schemes: procedure

(1) A transfer scheme made by a Minister under section 24(1)(a) may be included
in 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
15included 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.

(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 20Transfer schemes: taxation

(1) The 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
25such a scheme.

(2) The 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) 30anything transferred to be treated in a specified way for the purposes
of 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
35of any tax provision so far as relating to anything transferred.

(3) The 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) 40anything done for the purposes of, or in relation to, the transfer to have
or 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
of, 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) 5In this section—

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

10Part 2 Other provisions relating to public bodies

Provision relating to specific bodies

27 Regional development agencies

(1) The regional development agencies are abolished.

(2) 15Subsection (1) does not apply to the London Development Agency (provision
for the abolition of which is contained in the Localism Act 2011).

(3) The enactments specified in Schedule 6 are repealed to the extent shown.

(4) The Secretary of State may by order make provision for the purpose of
facilitating or securing that activities begun by a regional development agency
20may be continued or completed by another person.

(5) That includes in particular provision securing or facilitating that a person
continuing or completing activities begun by a regional development agency
may for their own purposes exercise any power of the agency.

(6) The powers referred to in subsection (5) include—

(a) 25powers of compulsory acquisition of land or rights over land;

(b) rights of entry.

(7) The Secretary of State may by order make other consequential, supplementary,
incidental or transitional provision, or savings.

(8) A statutory instrument containing an order under this section—

(a) 30if it contains provision repealing or amending an enactment, may not
be made unless it has been laid before, and approved by a resolution of,
each House of Parliament;

(b) in any other case, is subject to annulment in pursuance of a resolution
of either House of Parliament.

(9) 35The Secretary of State may make a scheme for the transfer of property, rights
and liabilities of a regional development agency to an eligible person or any
body corporate in connection with the abolition of the agency under subsection
(1); and sections 24(4) to (9) and 26 apply in relation to such a scheme.

(10) A scheme under subsection (9) may be included in an order under this section,
40but if not so included must be laid before Parliament after being made.

(11) In this section “regional development agency” means a development agency
established under the Regional Development Agencies Act 1998.

28 Sianel Pedwar Cymru

For section 61 of the Broadcasting Act 1990 (funding of Sianel Pedwar Cymru)
5there is substituted—

“61 Funding of Welsh Authority

(1) The Secretary of State shall secure that in 2012 and each subsequent
year the Welsh Authority are paid an amount which he considers
sufficient to cover the cost to the Authority during that year of—

(a) 10providing the Authority’s public services (within the meaning
of section 207 of the Communications Act 2003), and

(b) arranging for the broadcasting or distribution of those services.

(2) The Secretary of State may discharge the duty in subsection (1) by
making payments himself or entering into an agreement with another
15person for that person to do so (or both).

(3) If under this section the Welsh Authority are paid an amount for any
year which exceeds the cost referred to in subsection (1), the Authority
may pay the difference from the public service fund referred to in
section 61A to the person (or pro rata to the persons) from whom
20payments were received.

(4) Any sums required by the Secretary of State under this section shall be
paid out of money provided by Parliament.”

29 V & A, Science Museum, Kew and English Heritage

(1) The National Heritage Act 1983 is amended as follows.

(2) 25In section 3 (power of the Board of Trustees of the Victoria and Albert Museum
to form companies)—

(a) in subsection (1), for “one or more of those mentioned in subsection (2)”
there is substituted—

“(a) one or more of the particular objects mentioned in
30subsection (2), or

(b) any other object or objects incidental to the Board’s
functions.”;

(b) in subsection (2) for “objects” there is substituted “particular objects”.

(3) In section 11 (power of the Board of Trustees of the Science Museum to form
35companies)—

(a) in subsection (1) for “one or more of those mentioned in subsection (2)”
there is substituted—

“(a) one or more of the particular objects mentioned in
subsection (2), or

(b) 40any other object or objects incidental to the Board’s
functions.”;

(b) in subsection (2) for “objects” there is substituted “particular objects”.

(4) In section 25 (power of the Board of Trustees of the Royal Botanic Gardens,
Kew to form companies)—

(a) in subsection (1) for “one or more of those mentioned in subsection (2)”
there is substituted—

“(a) one or more of the particular objects mentioned in
subsection (2), or

(b) 5any other object or objects incidental to the Board’s
functions.”;

(b) in subsection (2) for “objects” there is substituted “particular objects”.

(5) In section 35 (power of the Historic Buildings and Monuments Commission for
England to form companies)—

(a) 10in subsection (1) for “one or more of those mentioned in subsection (2)”
there is substituted—

“(a) one or more of the particular objects mentioned in
subsection (2), or

(b) any other object or objects incidental to the
15Commission’s functions.”;

(b) in subsection (2) for “objects” there is substituted “particular objects”.

Superannuation

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

In section 1 of the Superannuation Act 1972 (superannuation schemes as
20respects 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”.

Part 3 Final

31 25Orders: 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
repealing, revoking or amending an enactment (whenever passed or made).

(3) The powers conferred by this Act are without prejudice to any other power
30conferred 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
purposes of the standing orders of either House of Parliament, it is to proceed
in that House as if it were not such an instrument.

32 35Interpretation

(1) In this Act—

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

• “constitutional arrangements” is to be construed in accordance with
  section 3(2) and (3);

Public Bodies BillPage 19

• “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)

  an internal drainage board, or

  (b)

  5a 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;

• “Minister” means—

  (a)

  10a 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
  section 5(2);

• 15“modify”, in relation to funding arrangements, is to be construed in
  accordance with section 4(3);

• “primary legislation” means any Act, Act of the Scottish Parliament,
  Northern Ireland legislation or Measure or Act of the National
  Assembly for Wales;

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

• “subordinate legislation” means an instrument made under primary
  legislation;

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

• 25“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
  be conferred by an Act of the Assembly, or

  (c)

  30a 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,

  and references to a person exercising a Welsh devolved function do not
  35include 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
with the day on which the draft order was laid before Parliament or the
40National 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) For the purposes of subsection (2) in relation to an order laid before the
45National 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.