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Public Bodies BillPage 10

(b) effectiveness,

(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

5they 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

continue to exercise.

17 10Consent of UK Ministers

(1) The Secretary of State’s consent is required for an order under section 12 or 13

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

(a) the Environment Agency,

(b) the Forestry Commissioners, or

(c) 15any other cross-border operator.

(2) The Secretary of State’s consent is required for an order under section 12 or 13

made by virtue of section 14 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 12 or 13 which

20transfers a function to, or modifies the functions of, the Minister.

18 Consultation by Welsh Ministers

(1) Where the Welsh Ministers propose to make an order under sections 12 to 15

they must consult—

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

25relates,

(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

30Ministers 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.

19 35Procedure for orders by Welsh Ministers etc

(1) If after consultation under section 18 the Welsh Ministers consider it

appropriate to proceed with the making of an order under sections 12 to 15, the

Welsh Ministers may lay before the National Assembly for Wales—

(a) a draft order, and

(b) 40an explanatory document.

(2) The explanatory document must—

(a) introduce and give reasons for the order,

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(b) explain, in the case of an order under section 12 or 13, why the Welsh

Ministers consider that—

(i) the order serves the purpose in section 16(1), and

(ii) the conditions in section 16(2)(a) and (b) are satisfied, and

(c) 5contain 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

10under 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,

15or

(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) 20any 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) 25If 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

30before 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

35draft 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 14(6) unless

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

40approved by a resolution of, each House of Parliament.

Restrictions on powers of Ministers and Welsh Ministers

20 Restriction on creation of functions

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

authorise the creation of—

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(a) a 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

5power.

21 Restriction 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) 10a 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) transfer an excluded function to a person not otherwise exercising

public functions, or

(b) 15authorise arrangements for an excluded function to be exercised by

such 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) 20a 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

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

individual.

22 25Restriction 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

criminal offence that is punishable—

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

(b) 30on summary conviction, with—

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

or

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

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

(a) 35in 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) in the case of an offence triable only summarily, six months, and

(ii) 40in the case of an offence triable either summarily or on

indictment, twelve months;

(c)

in relation to Northern Ireland, six months.

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(3) In 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) 5section 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

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

10force 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,

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

15subsection (2)(a)(ii) to twelve months is to be read as a reference to six

months.

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

criminal offence.

Transfer of property, rights and liabilities

23 20Transfer schemes

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

scheme”) 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 12 or 13.

(2) 25In 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

under section 3 or 4 (modification of constitutional or funding

arrangements), or

(b) 30an 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) the Welsh Ministers,

(b) a person exercising Welsh devolved functions, or

(c) 35a body corporate.

(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) 40property 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—

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(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) 5make 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

10references 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) 15for 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

20as 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—

24 30Transfer schemes: procedure

(1) A transfer scheme made by a Minister under section 23(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 23(1)(b) may be

35included in an order under section 12; 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

23(1)(b) transferring anything from or to the Environment Agency or the

Forestry Commissioners or a cross-border operator.

25 40Transfer 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 23, or

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

45such a scheme.

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(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) 5anything 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

10of 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) 15anything 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

20of 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) In this section—

Superannuation

26 30Scope of power to amend Schedule 1 to Superannuation Act 1972

In 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”.

35Final

27 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

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

(3) 40The powers conferred by this Act are without prejudice to any other power

conferred on a Minister or the Welsh Ministers.

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(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.

28 5Interpretation

(1) In this Act—

(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

National Assembly for Wales.

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(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

5National 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.

29 Extent

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

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

10extending to any other jurisdiction may also extend there.

30 Commencement

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

with the day on which it is passed.

31 Short title

15This Act may be cited as the Public Bodies Act 2011.

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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 23 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.

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