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Lord Sainsbury of Turville moved Amendment No. 531:
"CONTINUITY OF THE LAW
(1) This section applies where any provision of this Act re-enacts (with or without modification) an enactment repealed by this Act.
(2) The repeal and re-enactment does not affect the continuity of the law.
(3) Anything done (including subordinate legislation made), or having effect as if done, under or for the purposes of the repealed provision that could have been done under or for the purposes of the corresponding provision of this Act, if in force or effective immediately before the commencement of that corresponding provision, has effect thereafter as if done under or for the purposes of that corresponding provision.
(4) Any reference (express or implied) in this Act or any other enactment, instrument or document to a provision of this Act shall be construed (so far as the context permits) as including, as respects times, circumstances or purposes in relation to which the corresponding repealed provision had effect, a reference to that corresponding provision.
(5) Any reference (express or implied) in any enactment, instrument or document to a repealed provision shall be construed (so far as the context permits), as respects times, circumstances and purposes in relation to which the corresponding provision of this Act has effect, as being or (according to the context) including a reference to the corresponding provision of this Act.
(6) This section has effect subject to any specific transitional provision or saving contained in this Act.
(7) References in this section to this Act include subordinate legislation made under this Act.
(8) In this section "subordinate legislation" has the same meaning as in the Interpretation Act 1978 (c. 30)."
The noble Lord said: My Lords, this amendment introduces a new clause to follow Clause 881. It seeks to include a provision to ensure that things done in reliance on these provisions in the Companies Act 1985, which are repealed and replaced by the Bill, will continue to be legally effective.
Articles of association, company resolutions and contracts are all likely to refer to provisions of the Companies Act or to rely for their effect on the way in which those provisions work. Except where we intend a change, those articles, resolutions and contracts should continue to have effect, not only with old references converted into new but also with their legal effect capable of continuing, despite verbal differences between the old and the new.
This new clause applies automatically in all cases in which it is capable of applying. It is in addition to any more specific transitional provisions which may be included in the commencement orders by use of the power in the preceding Clause 881. It does not purport to be wholly comprehensive, but where it does apply it will avoid the need for equivalent provision to be made by possibly more than one order.
The same amendment was brought forward in Grand Committee, but our debate was coloured there by what I suspect may have been slightly crossed purposes. I hope, with the explanation I have provided today, we can agree the provision. I beg to move.
Lord Hodgson of Astley Abbotts: My Lords, I am not quite as happy as the Minister thought I might be. What we are concerned about is the question of the meshing of this piece of legislation with what went before. The Law Society still has some concerns about it. I wonder if it would be possible for the Minister, the Bill team and the Government to consider whether we could have a schedule to the Bill which would consist of a table identifying which provisions in the Bill correspond to provisions being repealed for the purposes of this clause.
There is certainly a concern which I explained on our last day in Committee about how these all mesh together. I said then that the new clause appears to apply only when existing provisions are re-enacted with or without modification. It does not appear to cover the situation where an existing provision is simply repealed without being re-enacted. I also think some of these concerns continue to persist in the world at large. We share the Government's view that we are trying to make company law comprehensible and accessible. Some practitioners and the Law Society feel that a schedule with a table would help bring the whole thing together. I wonder if the Minister could comment further on the possibility of some such arrangement being made available.
Lord Sainsbury of Turville: My Lords, there are two parts to this: the general bit and then the transitional arrangements to cover any cases where one needs to give specific instructions as to what the transition should be. I would be delighted to write to the noble Lord with a more specific answer to his suggestion and, if necessary, hold further technical discussions.
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Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the Minister for that. This is a practitioner issue and it would be wrong for me to pretend, even after three days on Report and 13 days in Committee, that I have this Bill completely focused in my mind. If the Law Society is having difficulty in seeing how all this fits together, I think there is an issue here that we could all usefully address in the interests of UK plc. I hope the Minister will be able to ask the Bill team to consider this and maybe talk to the Law Society and practitioners. It would help the Bill, which is what we are trying to achieve in this elaborate process.
On Question, amendment agreed to.
Lord Sainsbury of Turville moved Amendment No. 532:
On Question, amendment agreed to.
Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 24 April be approved [25th Report from the Joint Committee].
The noble Lord said: My Lords, the draft National Assembly for Wales (Transfer of Functions) Order 2006 must be made by Order in Council following approval of the draft order by both Houses of Parliament. Section 22 of the Government of Wales Act 1998 enables a function of a Minister of the Crown to be transferred to the National Assembly for Wales upon receipt of this approval. That is why this short and, I hope, uncontentious order is before the House today. The Wales Office has worked closely with all relevant departments: the Department for Communities and Local Governmentformerly the Office of the Deputy Prime Ministerthe Department for Education and Skills and of course the National Assembly for Wales. Policy on these issues has been agreed by all parties in the Assembly.
Turning to the draft order, two transfers will be effected or facilitated by the House approving this order. First, the most significant transfer to be effected by this order is the transfer to the Assembly of those fire safety functions which at present remain with the UK Government. The case for this transfer has its genesis in the making of the Regulatory Reform (Fire Safety) Order 2005, which is a reform of all the current fire safety law that is contained in more than 100 separate pieces of fire safety legislation. The main substance of the RRO comes into force on 1 October 2006. The main emphasis of the reform will be towards fire prevention and a regime of fire risk assessment by the person responsible for their non-domestic premises, to identify, mitigate or remove any risk from fire to persons in or around the premises. The Fire and Rescue Services Act 2004 came into force in
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Wales in November 2004. Matters relating to fire and rescue authorities in Wales were conferred on the National Assembly for Wales by that Act. This transfer of functions order is consistent with that policy of devolution and will enable the National Assembly for Wales to act across the range of the regulatory reform order provisions; and thus give the National Assembly for Wales a comparable level of responsibility as will exist in England from 1 October 2006.
The other function included in this omnibus order is the transfer of powers under Section 1 of the Education (Fees and Awards) Act 1983. This section currently enables the Secretary of State for Education and Skills to make regulations that allow certain institutions to charge higher fees to those students who cannot demonstrate a connection with the UK than to those who can. This change will enable the Assembly to make regulations regarding the charging of fees at universities and further education establishments in relation to Wales. The functions under Section 2 of the 1983 Act were previously devolved to the Assembly in 1999 and make similar provision for post-compulsory education awards by local education authorities. This split in responsibilities has made it increasingly complex to draft regulations under the 1983 Act, with some elements being made by the Assembly and others by the Secretary of State. Given the devolution of student support policy to the Assembly from the 200607 academic year, it is no longer appropriate for these powers to remain with the Secretary of State. The transfer will facilitate the creation of future policy and improve accountability for both the Assembly and the DfES. I commend the order to the House and I beg to move.
Moved, That the draft order laid before the House on 24 April be approved [25th Report from the Joint Committee].(Lord Evans of Temple Guiting.)
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