Offender Management Bill

House of Lords

Session 2006 - 07
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Offender Management Bill

Offender Management Bill
Schedule 1 — Probation trusts: further provisions
25

Schedules
Schedule 1
Section 5

Probation trusts: further provisions
Name and status
1     (1)
A probation trust is a body corporate.
5
      (2)
The name of the trust is that specified in the order establishing it.
2
A probation trust is not to be regarded as the servant or agent of the Crown
or as enjoying any status, privilege or immunity of the Crown (and,
accordingly, its property is not to be regarded as property of, or property
held on behalf of, the Crown).
10
Membership and terms of appointment
3     (1)
A probation trust shall consist of—
(a)
a chairman and not less than four other members appointed by the
Secretary of State; and
(b)
the chief executive.
15
      (2)
In the following provisions “appointed member” means a member of a
probation trust appointed by the Secretary of State under sub-paragraph
(1)(a) (including the chairman, where the context allows).
4     (1)
An appointed member holds and vacates office (and may be removed from
office) in accordance with the terms of his appointment.
20
      (2)
An appointed member may resign by giving notice in writing to the
Secretary of State.
Remuneration etc of members
5     (1)
The Secretary of State shall—
(a)
pay appointed members such remuneration, fees and expenses as
25
may be determined by him; and
(b)
pay, or make provision for paying, any person who is or has been an
appointed member such pensions, allowances or gratuities as may
be so determined.
      (2)
If the Secretary of State determines that there are special circumstances that
30
make it right for a person ceasing to hold office as an appointed member
(otherwise than on the expiration of his term of office) to receive
compensation, the Secretary of State may pay an amount of compensation
determined by him to that person.

Offender Management Bill
Schedule 1 — Probation trusts: further provisions
26

Chief executive and other employees
6     (1)
A probation trust shall have a chief executive appointed by the appointed
members.
      (2)
The terms of employment of the chief executive are for the appointed
members to determine.
5
      (3)
Sub-paragraphs (1) and (2) do not apply to—
(a)
the appointment of the first chief executive of the trust, or
(b)
the determination of the terms of employment applicable to the first
chief executive when his appointment takes effect,

if the Secretary of State directs that the first chief executive is to be a person
10
appointed by the Secretary of State on terms determined by the Secretary of
State.
7     (1)
A probation trust may appoint such employees (in addition to the chief
executive) as it thinks appropriate.
      (2)
The terms of employment of employees so appointed are for the trust to
15
determine.
8     (1)
Subject to sub-paragraph (2), the determination of terms of employment
under paragraph 6(2) or 7(2) relating to—
(a)
remuneration, fees or expenses, and
(b)
pensions, allowances or gratuities,
20

requires the approval of the Secretary of State.
      (2)
The Secretary of State may direct that for the time being sub-paragraph (1)
does not apply in such cases or circumstances as may be specified in the
direction.
      (3)
Such a direction may be given in relation to—
25
(a)
all probation trusts or to any probation trust specified or described in
the direction;
(b)
all determinations to which sub-paragraph (1) applies or to such
determinations as may be specified or described in the direction.
Proceedings and delegation
30
9
A probation trust may regulate its own procedure (including quorum).
10
The validity of any proceedings of a probation trust is not affected by a
vacancy among its members or by a defect in the appointment of any
member.
11    (1)
A probation trust may authorise an appointed member, a committee, the
35
chief executive or any other member of staff to do anything (including
exercising the power under this paragraph) that the trust would otherwise
have to do itself.
      (2)
For this purpose “committee” means a committee or sub-committee of the
trust, including one that includes persons who are not members of the trust.
40
      (3)
Authorisation under this paragraph may be general or specific.

Offender Management Bill
Schedule 1 — Probation trusts: further provisions
27

General powers
12    (1)
A probation trust has power to do anything (including acquiring and
disposing of property and accepting gifts) which appears to it to facilitate, or
to be conducive or incidental to—
(a)
the achievement of its purposes; or
5
(b)
the performance of any functions conferred on it by any enactment
(whenever passed or made).
      (2)
But a probation trust—
(a)
may not hold land (though it may manage land held by another);
(b)
may not—
10
(i)
borrow money, whether by way of overdraft or otherwise; or
(ii)
invest sums not immediately required for achieving its
purposes,

without the approval of the Secretary of State.
      (3)
Approval under sub-paragraph (2)(b) may be general or specific.
15
      (4)
In this paragraph “enactment” includes subordinate legislation (within the
meaning of the Interpretation Act 1978 (c. 30)).
Accounts and records
13    (1)
A probation trust must—
(a)
keep proper accounts and proper records in relation to the accounts;
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(b)
prepare in respect of each financial year a statement of accounts.
      (2)
The Comptroller and Auditor General may examine any accounts of the
trust, any records relating to the accounts and any auditor’s report on them.
      (3)
In the Audit Commission Act 1998 (c. 18)—
(a)
in section 11(2) (consideration of reports and recommendations), for
25
paragraph (f) there is substituted—
“(f)
probation trusts established under section 5 of the
Offender Management Act 2007;”; and
(b)
in Schedule 2 (accounts subject to audit), for paragraph 1(p) there is
substituted—
30
“(p)
a probation trust established under section 5 of the
Offender Management Act 2007.”.
      (4)
In this paragraph “financial year”, in relation to a probation trust, means a
period of 12 months ending with 31st March (except that its first financial
year is the period beginning with the date on which it is established and
35
ending with the next following 31st March).
Duty to comply with directions
14    (1)
A probation trust must comply with any general or specific directions given
to it by the Secretary of State in connection with the carrying on of any of its
activities.
40
      (2)
In particular, a probation trust must provide the Secretary of State with any
information relating to the performance of its activities as he may from time
to time direct.

Offender Management Bill
Schedule 2 — Transfers of property etc and staff in connection with probation services arrangements
28

      (3)
Different directions may be given under this paragraph for different
purposes and in relation to different probation trusts.
Schedule 2
Section 8

Transfers of property etc and staff in connection with probation services
arrangements
5
Transfer schemes: preliminary
1     (1)
A property transfer scheme or a staff transfer scheme may be made for the
purposes of or in connection with—
(a)
the abolition of a local probation board;
(b)
the implementation or termination of any arrangements made by the
10
Secretary of State under section 3(2) or (4); or
(c)
the implementation or termination of any arrangements mentioned
in section 3(3)(c) for anything to be done on behalf of a provider of
probation services.
      (2)
In this Schedule—
15
“property” includes rights and interests of any description (other than
those under a contract of employment);
“property transfer scheme” means a scheme under paragraph 2;
“relevant person” means—
(a)
a probation trust;
20
(b)
any other provider of probation services; or
(c)
a person with whom any arrangements mentioned in sub-
paragraph (1)(c) are made;
“staff transfer scheme” means a scheme under paragraph 5.
Property transfer schemes
25
2     (1)
The Secretary of State may make a scheme (“the scheme”) providing for—
(a)
the transfer to the Secretary of State of—
(i)
the property and liabilities of a local probation board; or
(ii)
any property or liabilities of a relevant person; or
(b)
the transfer to a relevant person of any property or liabilities of the
30
Secretary of State (whether or not after an initial transfer to him
under paragraph (a)).
      (2)
The scheme may—
(a)
create rights or interests, or impose liabilities or conditions, in
relation to anything transferred or acquired by virtue of the scheme;
35
(b)
provide for the Secretary of State or any other person nominated by
or in accordance with the scheme to determine any matter requiring
determination under or in consequence of the scheme;
(c)
make supplementary, incidental, transitional and consequential
provision.
40
      (3)
Any property or liability that is the subject of the scheme is, by virtue of this
paragraph, transferred at the time appointed by or under the scheme.

Offender Management Bill
Schedule 2 — Transfers of property etc and staff in connection with probation services arrangements
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      (4)
A certificate issued by the Secretary of State that any property or liability
has, or has not, been transferred by virtue of the scheme is conclusive
evidence of the transfer or the fact that it has not been transferred (as the case
may be).
3     (1)
This paragraph applies where a property transfer scheme is made.
5
      (2)
The scheme has effect despite any provision, of whatever nature, which
would otherwise prevent, penalise or restrict the transfer of anything that is
the subject of the scheme.
      (3)
A right of pre-emption, right of reverter or other similar right shall not
operate or become exercisable as a result of any transfer of property by
10
virtue of the scheme (but shall have effect after the transfer as if the
transferee and the transferor were the same person and no transfer had
taken place).
      (4)
Such compensation as is just is to be paid to any person in respect of any
right which would, apart from sub-paragraph (2), have operated in favour
15
of, or become exercisable by, that person but which (in consequence of that
sub-paragraph), cannot subsequently operate in his favour or become
exercisable by him.
      (5)
Any such compensation is to be paid by the transferor, by the transferee or
by both.
20
      (6)
The scheme may provide for the determination of disputes as to whether
and, if so, how much compensation is to be paid and as to the person by
whom or to whom it is to be paid.
      (7)
This paragraph applies in relation to the creation of rights or interests, or the
doing of anything else, in relation to property as it applies in relation to a
25
transfer of property (and references to the transferor and transferee are to be
read accordingly).
4     (1)
Anything done by or in relation to the transferor for the purposes of or in
connection with anything transferred by a property transfer scheme which
is in effect immediately before the transfer is to be treated as if done by or in
30
relation to the transferee.
      (2)
There may be continued by or in relation to the transferee anything
(including legal proceedings) relating to anything so transferred which is in
the process of being done by or in relation to the transferor immediately
before it is transferred.
35
      (3)
A reference to the transferor in any document relating to anything so
transferred is to be taken (so far as necessary for the purposes of or in
consequence of the transfer) as a reference to the transferee.
      (4)
References in this paragraph to things done or being done by or in relation
to the transferor include a reference to things treated by virtue of any Act or
40
subordinate legislation (within the meaning of the Interpretation Act 1978
(c. 30)) as done or being done by or in relation to the transferor.
Staff transfer schemes
5     (1)
The Secretary of State may make a scheme (“the scheme”) for—
(a)
the transfer of employees of a local probation board to a relevant
45
person or so as to become employed in the civil service of the state;

Offender Management Bill
Schedule 2 — Transfers of property etc and staff in connection with probation services arrangements
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(b)
the transfer of employees of one relevant person to another relevant
person or so as to become employed in the civil service of the state;
(c)
the transfer of persons employed in the civil service of the state so as
to become employees of a relevant person.
      (2)
The scheme may—
5
(a)
be expressed to apply to any description of person (or, in the case of
a transfer from a local probation board or relevant person, all its
employees) or to any individual person;
(b)
provide for the Secretary of State or any other person nominated by
or in accordance with the scheme to determine any matter requiring
10
determination under or in consequence of the scheme;
(c)
make supplementary, incidental, transitional and consequential
provision.
      (3)
The scheme may not be made unless any directions about consultation given
by the Secretary of State have been complied with in relation to each person
15
to be transferred by virtue of the scheme.
6     (1)
This paragraph applies to an employee of a probation board or a relevant
person who is to be transferred to a relevant person by virtue of a staff
transfer scheme.
      (2)
The contract of employment is not terminated by the transfer and has effect
20
from the date of transfer as if originally made between the employee and the
transferee.
      (3)
Where the employee is transferred under the scheme—
(a)
all the rights, duties and liabilities of the transferor under or in
connection with the contract of employment are by virtue of this sub-
25
paragraph transferred to the transferee on the date of the transfer;
and
(b)
anything done before that date by, or in relation to, the transferor in
respect of that contract or the employee is to be treated from that date
as having been done by or in relation to the transferee.
30

This sub-paragraph does not prejudice the generality of sub-paragraph (2).
      (4)
But if the employee informs the transferor or the transferee that he objects to
the transfer—
(a)
sub-paragraphs (2) and (3) do not transfer the contract of
employment (or the rights, powers, duties and liabilities under or in
35
connection with it); and
(b)
the contract of employment is terminated immediately before the
date of transfer.
      (5)
The employee is not to be treated, for the purposes of the Employment
Rights Act 1996 (c. 18), as having been dismissed by the transferor by reason
40
of—
(a)
the transfer of the contract of employment under the scheme; or
(b)
the termination of the contract of employment under sub-paragraph
(4)(b).
      (6)
In this paragraph “transferor” and “transferee” refer to the employer from
45
whom or to whom the employee is or would be transferred under the
scheme.

Offender Management Bill
Schedule 2 — Transfers of property etc and staff in connection with probation services arrangements
31

7     (1)
This paragraph applies where an employee of a probation board or a
relevant person is to become employed in the civil service of the state by
virtue of a staff transfer scheme.
      (2)
The employee’s period of employment with the transferor counts as a period
of employment in his Crown employment and the change of employment
5
does not break the continuity of that employment.
      (3)
So far as may be consistent with employment in the civil service of the state,
the terms and conditions of his employment have effect after the transfer as
if they were terms and conditions of his Crown employment.
      (4)
Where the employee is transferred under the scheme—
10
(a)
all the rights, duties and liabilities of the transferor under or in
connection with the contract of employment are by virtue of this sub-
paragraph transferred to the Crown on the date of the transfer; and
(b)
anything done before that date by, or in relation to, the transferor in
respect of that contract or the employee is to be treated from that date
15
as having been done by or in relation to the Crown.

This sub-paragraph does not prejudice the generality of sub-paragraphs (2)
and (3).
      (5)
But if the employee informs the transferor or the Secretary of State that he
objects to the transfer—
20
(a)
the transfer shall not take place (and so sub-paragraphs (2) to (4) do
not apply); and
(b)
the contract of employment is terminated immediately before the
date of transfer.
      (6)
The employee is not to be treated, for the purposes of Part 9 of the
25
Employment Rights Act 1996, as having been dismissed by reason of—
(a)
his transfer to Crown employment; or
(b)
the termination of the contract of employment by virtue of sub-
paragraph (5)(b).
      (7)
In this paragraph “transferor” refers to the employer from whom the
30
employee is or would be transferred under the scheme.
8     (1)
This paragraph applies to an individual who is to be transferred from
employment in the civil service of the state so as to become an employee of
a relevant person by virtue of a staff transfer scheme.
      (2)
The individual’s employment is not terminated by the transfer.
35
      (3)
The terms and conditions of the individual’s Crown employment (so far as
consistent with employment under a contract of employment with a person
other than the Crown) have effect from the date of transfer as the terms and
conditions of a contract of employment originally made between the
individual and the transferee.
40
      (4)
Where the individual is transferred under the scheme—
(a)
all the rights, duties and liabilities of the Crown under or in
connection with his employment are by virtue of this sub-paragraph
transferred to the transferee on the date of the transfer; and
(b)
anything done before that date by, or in relation to, the Crown in
45
respect of that employment or the individual is to be treated from
that date as having been done by or in relation to the transferee.