Public Bodies Bill (HL Bill 56)

General ministerial powers

1 Power to abolish

(1) Subject to section 16, a Minister may by order abolish a body or office specified
in Schedule 1.

(2) 5An order under subsection (1) may include provision transferring functions
from the body or office being abolished to an eligible person.

(3) In this Act, “eligible person” means—

(a) a Minister, the Scottish Ministers, a Northern Ireland department or the
Welsh Ministers,

(b) 10any other person exercising public functions,

(c) a company limited by guarantee,

(d) a community interest company, or

(e) a body of trustees or other unincorporated body of persons.

2 Power to merge

(1) 15Subject to section 16, a Minister may by order merge any group of bodies or
offices specified in Schedule 2.

(2) In this section, to “merge” a group means—

(a) to abolish all the bodies or offices in the group, create a new body
corporate or office and transfer some or all of the functions of the
abolished bodies or offices to the new one, or

(b) to abolish all but one of the bodies or offices in the group and to transfer
5some or all of the functions of the abolished bodies or offices to the
remaining one.

(3) An order under subsection (1) may include provision to transfer a function
from a body or office being abolished to an eligible person not included in the
group.

3 10Power to modify constitutional arrangements

(1) Subject to section 16, a Minister may by order modify the constitutional
arrangements of a body or office specified in Schedule 3.

(2) In this Act, references to the constitutional arrangements of a body include
matters relating to—

(a) 15the name of the body;

(b) the chair of the body (including qualifications and procedures for
appointment and functions);

(c) members of the body (including the number of members, qualifications
and procedures for appointment and functions);

(d) 20employees of the body exercising functions on its behalf (including
qualifications and procedures for appointment and functions);

(e) the body’s powers to employ staff;

(f) governing procedures and arrangements (including the role and
membership of committees and sub-committees);

(g) 25reports and accounts;

(h) the extent to which the body is accountable to Ministers;

(i) the extent to which the body exercises functions on behalf of the Crown.

(3) In this Act, references to the constitutional arrangements of an office include
matters relating to—

(a) 30the name of the office;

(b) appointment of the office-holder (including qualifications and
procedures for appointment);

(c) the office-holder’s powers to employ staff;

(d) reports and accounts;

(e) 35the extent to which the office-holder is accountable to Ministers;

(f) the extent to which the office-holder exercises functions on behalf of the
Crown.

4 Power to modify funding arrangements

(1) Subject to section 16, a Minister may by order modify the funding
40arrangements of a body or office specified in Schedule 4.

(2) In this Act, references to modifying the funding arrangements of a body or
office include—

(a) modifying the extent to which it is funded by a Minister;

(b) conferring power on the body, or the office-holder, to charge fees for
45the exercise of a function (and to determine their amount).

5 Power to modify or transfer functions

(1) Subject to section 16, a Minister may by order—

(a) modify the functions of a body, or the holder of an office, specified in
Schedule 5, or

(b) 5transfer a function of such a person to an eligible person.

(2) In this Act, references to modifying the functions of a person include—

(a) conferring a function on the person;

(b) abolishing a function of the person;

(c) changing the purpose or objective for which the person exercises a
10function;

(d) changing the conditions under which the person exercises a function.

6 Power to authorise delegation

(1) Subject to section 16, a Minister may by order authorise a body, or the holder
of an office, specified in Schedule 6 to enter into arrangements with an eligible
15person for a function exercised by the body or office-holder to be exercised by
the eligible person.

(2) Arrangements made under an order under subsection (1) may, subject to the
provisions of the order, provide for the exercise of the function by the eligible
person—

(a) 20unconditionally or subject to such conditions as may be specified in the
order or the arrangements;

(b) for such period, not exceeding ten years, as may be so specified.

(3)
Arrangements made under an order under subsection (1)—

(a) may be revoked at any time by the body or office-holder authorised to
25enter into them;

(b) do not prevent the body or office-holder from exercising the function to
which the arrangements relate;

(c) do not affect the responsibility of the body or office-holder in relation
to the function.

7 30Consequential provision etc

(1) An order under sections 1 to 6 may make consequential, supplementary,
incidental or transitional provision, or savings.

(2) Where an order under sections 1, 2 or 5(1)(b) transfers functions, the power in
subsection (1) includes power to make consequential or supplementary
35provision—

(a) to modify functions of the transferor or transferee;

(b) to modify the constitutional or funding arrangements of the transferor
or transferee.

(3) Where an order under section 5(1)(a) modifies functions of a body or office-
40holder, the power in subsection (1) includes power to make consequential or
supplementary provision to modify the constitutional or funding
arrangements of the body or office.

(4) Where an order under section 6 authorises arrangements for the exercise of
functions by an eligible person who exercises public functions, the power in

subsection (1) includes power to make consequential or supplementary
provision—

(a) to modify the eligible person’s public functions, or

(b) to modify the eligible person’s constitutional or funding arrangements.

5General ministerial powers: supplementary

8 Matters to be considered

(1) In considering whether to make an order under sections 1 to 6, the Minister
must have regard to the following objectives—

(a) achieving increased efficiency, effectiveness and economy in the
10exercise of public functions;

(b) securing appropriate accountability to Ministers in the exercise of such
functions.

(2) A Minister may make an order under those sections only if the Minister
considers that—

(a) 15the 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.

9 Devolution

(1) 20An order under sections 1 to 6 requires the consent of the Scottish Parliament
to make provision—

(a) which would be within the legislative competence of the Scottish
Parliament if it were contained in an Act of that Parliament, or

(b) which modifies the functions of the Scottish Ministers.

(2) 25Consent is not required under subsection (1)(b) in relation to provision
abolishing a function of the Scottish Ministers which relates to a body
abolished under section 1 or 2.

(3) An order under sections 1 to 6 requires the consent of the Northern Ireland
Assembly to make provision—

(a) 30which would be within the legislative competence of the Northern
Ireland Assembly if it were contained in an Act of the Assembly, or

(b) which modifies the functions of a person within subsection (4).

(4) The persons referred to in subsection (3)(b) are—

(a) the First Minister and deputy First Minister of Northern Ireland;

(b) 35a Northern Ireland Minister;

(c) the Attorney General for Northern Ireland;

(d) a Northern Ireland department;

(e) a person exercising public functions in relation to a transferred matter
(within the meaning of the Northern Ireland Act 1998).

(5) 40Consent is not required under subsection (3)(a) in relation to any provision if a
Bill for an Act of the Northern Ireland Assembly containing the provision
would require the consent of the Secretary of State under section 8 of the

Northern Ireland Act 1998 and the provision does not affect, other than
incidentally, a transferred matter (within the meaning of that Act).

(6) An order under sections 1 to 6 requires the consent of the National Assembly
for Wales to make provision which would be within the legislative competence
5of the Assembly if it were contained in a Measure of the Assembly (or, if the
order is made after the Assembly Act provisions come into force, an Act of the
Assembly).

(7) An order under sections 1 to 6 requires the consent of the Welsh Ministers to
make provision not falling within subsection (6)—

(a) 10which modifies the functions of the Welsh Ministers, the First Minister
for Wales or the Counsel General to the Welsh Assembly Government,
or

(b) which could be made by any of those persons.

(8) In subsection (6), “the Assembly Act provisions” has the meaning given by
15section 103(8) of the Government of Wales Act 2006.

(9) In subsection (7), references to a function do not include—

(a) a function of giving consent to, or being consulted about, the exercise of
a function by a Minister, or

(b) a function relating to the constitutional arrangements of a body or
20office.

10 Consultation

(1) A Minister proposing to make an order under sections 1 to 6 must consult—

(a) the body or the holder of the office to which the proposal relates,

(b) such other persons as appear to the Minister to be representative of
25interests substantially affected by the proposal,

(c) the Scottish Ministers, if the proposal relates to any matter, so far as
applying in or as regards Scotland, in relation to which the Scottish
Ministers exercise functions (and where the consent of the Scottish
Parliament is not required under section 9),

(d) 30a Northern Ireland department, if the proposal relates to any matter, so
far as applying in or as regards Northern Ireland, in relation to which
the department exercises functions (and where the consent of the
Northern Ireland Assembly is not required under section 9),

(e) the Welsh Ministers, if the proposal relates to any matter, so far as
35applying in or as regards Wales, in relation to which the Welsh
Ministers exercise functions (and where the consent of the National
Assembly for Wales is not required under section 9),

(f) where the functions affected by the proposal relate to the
administration of justice, the Lord Chief Justice, and

(g) 40such other persons as the Minister considers appropriate.

(2) If, as a result of consultation under subsection (1), it appears to the Minister
appropriate to change the whole or part of the proposal, the Minister must
carry out such further consultation with respect to the changes as seems
appropriate.

(3) 45It is immaterial for the purposes of this section whether consultation is carried
out before or after the commencement of this section.

11 Procedure

(1) If after consultation under section 10 the Minister considers it appropriate to
proceed with the making of an order under sections 1 to 6, the Minister may lay
before Parliament—

(a) 5a draft order, and

(b) an explanatory document.

(2) The explanatory document must—

(a) introduce and give reasons for the order (including reasons relating to
the objectives in section 8(1)),

(b) 10explain why the Minister considers that the conditions in section 8(2)(a)
and (b) are satisfied, and

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

(3) The Minister 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) 15Subject as follows, if after the expiry of the 40-day period the draft order laid
under subsection (1) is approved by a resolution of each House of Parliament,
the Minister 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) 20either House of Parliament so resolves within the 30-day period, or

(b) a committee of either House charged with reporting on the draft order
so recommends within the 30-day period and the House to which the
recommendation is made does not by resolution reject it within that
period.

(6) 25The Minister must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament
charged with reporting on the draft order,

30made 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 each House of Parliament, the Minister may make an order in the
terms of the draft order.

(8) If after the expiry of the 60-day period the Minister wishes to proceed with the
35draft order but with material changes, the Minister may lay before
Parliament—

(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 each House of
40Parliament, the Minister 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
or revised draft order if it contains no material changes to its provisions.

Powers of Welsh Ministers

12 Powers relating to environmental bodies

(1) The Welsh Ministers may by order modify—

(a) the functions of the Countryside Council for Wales (“the CCW”),

(b) 5the functions of the Environment Agency, so far as relating to Wales, or

(c) the functions of the Forestry Commissioners, so far as so relating.

(2) The Welsh Ministers may by order transfer any function of the CCW to—

(a) a new body,

(b) the Welsh Ministers,

(c) 10the Environment Agency or the Forestry Commissioners, or

(d) any other person exercising public functions in relation to Wales.

(3) The Welsh Ministers may by order transfer any function of the Environment
Agency or the Forestry Commissioners, so far as relating to Wales, to—

(a) a new body,

(b) 15the Welsh Ministers,

(c) the CCW, or

(d) any other person exercising public functions in relation to Wales.

(4) The Welsh Ministers may by order transfer any function of theirs relating to the
environment to—

(a) 20a new body,

(b) the CCW, or

(c) the Environment Agency or the Forestry Commissioners.

(5) The Welsh Ministers may by order transfer any Welsh devolved function
relating to the environment from the person whose function it is to—

(a) 25a new body,

(b) the CCW, or

(c) the Environment Agency or the Forestry Commissioners.

(6) The Welsh Ministers may by order establish a body corporate for the purposes
of this section; and in this section references to a “new body” are to any body
30so established.

(7) The Secretary of State’s consent is required for an order under this section
which—

(a) modifies the functions of the Environment Agency or Forestry
Commissioners, where the functions affected are not Welsh devolved
35functions;

(b) transfers a function to the Environment Agency or the Forestry
Commissioners;

(c) transfers a function from the Environment Agency or the Forestry
Commissioners, where the function is not a Welsh devolved function;

(d) 40transfers a function to a person referred to in subsection (2)(d) or (3)(d),
where the functions exercised by the person before the making of the
order are not Welsh devolved functions.

(8) In this section, “Welsh devolved function” means—

(a) a function conferred under a Measure or Act of the National Assembly
45for Wales,

(b) a function which is exercisable in or as regards Wales and relates to
matters within the legislative competence of the National Assembly for
Wales, or

(c) a function in relation to which—

(i) 5a function is exercisable by the Welsh Ministers, the First
Minister or the Counsel General to the Welsh Assembly
Government, and

(ii) no function (other than a function of being consulted) is
exercisable by a Minister.

(9) 10In considering whether to make an order under this section, the Welsh
Ministers must have regard to the following objectives—

(a) achieving increased efficiency, effectiveness and economy in the
exercise of public functions;

(b) securing appropriate accountability to Welsh Ministers in the exercise
15of such functions.

(10) The Welsh Ministers may make an order under this section 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
20right or freedom which that person might reasonably expect to
continue to exercise.

(11) In this section, “Wales” has the same meaning as in the Government of Wales
Act 2006.

13 Powers relating to environmental bodies: consequential provision etc

(1) 25An order under section 12 may contain consequential, supplementary,
incidental or transitional provision, or savings.

(2) Where an order under that section transfers functions, the power in subsection
(1) includes power to make consequential or supplementary provision—

(a) to modify the constitutional or funding arrangements of the transferor
30or transferee (not including the Environment Agency or Forestry
Commissioners);

(b) to modify functions of the transferor or transferee;

(c) to confer powers of direction on Welsh Ministers in relation to
functions transferred.

(3) 35The Secretary of State’s consent is required for an order under section 12
making provision by virtue of subsection (1) which does not relate exclusively
to Welsh devolved functions (within the meaning of that section).

(4) Where an order under section 12—

(a) modifies functions of the Environment Agency or Forestry
40Commissioners, or

(b) transfers functions to or from the Environment Agency or Forestry
Commissioners,

the Secretary of State may by order make consequential or supplementary
provision modifying its or their constitutional or funding arrangements.

14 Delegation etc

(1) A body specified in subsection (2) may make arrangements with a body
specified in subsection (3) for—

(a) a function of one to be exercised by the other,

(b) 5the provision of administrative, professional or technical services by
one to the other, or

(c) co-operation in relation to the exercise of their respective functions.

(2) The bodies in this subsection are—

(a) the Environment Agency, and

(b) 10the Forestry Commissioners.

(3) The bodies in this subsection are—

(a) the Countryside Council for Wales, and

(b) a body which is a new body for the purposes of section 12.

(4) The Welsh Ministers may by order make provision about how the function of
15making arrangements under subsection (1) is to be discharged.

(5) The Secretary of State’s consent is required for an order under subsection (4).

15 Procedure for orders under sections 12 to 14

(1) An order may not be made by the Welsh Ministers under section 12 or 14
unless a draft of the instrument containing the order has been laid before, and
20approved by a resolution of, the National Assembly for Wales.

(2) An order may not be made by the Secretary of State under section 13(4) 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

16 25Restrictions on Ministerial powers

(1) The modification or transfer of a function by an order under the preceding
provisions of this Act must not prevent it (to the extent that it continues to be
exercisable) from being exercised independently of Ministers in any of the
following cases.

(2) 30Those cases are—

(a) where the function is a judicial function (whether or not exercised by a
court or a tribunal);

(b) where the function’s exercise involves enforcement activities in relation
to obligations imposed on a Minister;

(c) 35where the function’s exercise otherwise constitutes the exercise of
oversight or scrutiny of the actions of a Minister.

(3) Provision made by an order under the preceding provisions of this Act must
be proportionate to the reasons for the order.

(4) In this section “enforcement activities” means—

(a) 40the bringing of legal proceedings or the provision of assistance with the
bringing of legal proceedings;