House of Lords portcullis
House of Lords
Session 2010 - 11
Internet Publications
Other Bills before Parliament

Public Bodies Bill [HL]


Public Bodies Bill [HL]

8

 

(2)   

The bodies in this subsection are—

(a)   

the Environment Agency, and

(b)   

the Forestry Commissioners.

(3)   

The bodies in this subsection are—

(a)   

the Countryside Council for Wales, and

5

(b)   

a body which is a new body for the purposes of section 13.

(4)   

The Welsh Ministers may by order make provision about how the function of

making arrangements under subsection (1) is to be discharged.

(5)   

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

16      

Procedure for orders under sections 13 to 15

10

(1)   

An order may not be made by the Welsh Ministers under section 13 or 15

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

approved by a resolution of, the National Assembly for Wales.

(2)   

An order may not be made by the Secretary of State under section 14(4) unless

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

15

approved by a resolution of, each House of Parliament.

Powers in relation to forestry

17      

Powers relating to functions of Secretary of State

(1)   

This section applies to the functions of the Secretary of State under the

following provisions of the Forestry Act 1967—

20

(a)   

section 39(2) (disposal);

(b)   

section 39(3)(a) (management and use);

(c)   

section 39(3)(b) (letting and granting of rights and interests).

(2)   

The Secretary of State may by order amend the Forestry Act 1967 so as to

modify the purposes or objective for which, or conditions under which, the

25

Secretary of State exercises a function to which this section applies.

(3)   

An order under subsection (2) may in particular secure that the Secretary of

State may exercise a function to which this section applies for any purpose or

unconditionally.

(4)   

An order under subsection (2) may contain consequential, supplementary,

30

incidental or transitional provision, or savings.

(5)   

The Secretary of State may enter into arrangements with any person for that

person to exercise a function to which this section applies.

(6)   

Arrangements made under subsection (5) may provide for the exercise of the

function by the person—

35

(a)   

unconditionally or subject to such conditions as may be specified in the

arrangements;

(b)   

for such period as may be so specified.

(7)   

Arrangements made under subsection (5) —

(a)   

may be revoked at any time by the Secretary of State;

40

 
 

Public Bodies Bill [HL]

9

 

(b)   

do not prevent the Secretary of State from exercising the function to

which the arrangements relate;

(c)   

do not affect the responsibility of the Secretary of State in relation to the

function.

(8)   

The Secretary of State may in particular enter into arrangements under

5

subsection (5) with the Forestry Commissioners.

18      

Powers relating to Forestry Commissioners

(1)   

The Secretary of State may by order do any of the following in relation to the

Forestry Commissioners—

(a)   

modify their constitutional arrangements;

10

(b)   

modify their functions relating to England;

(c)   

transfer a function of theirs relating to England to another person;

(d)   

authorise them to enter into arrangements with another person for that

person to exercise a function of theirs relating to England.

(2)   

Arrangements made under an order under subsection (1)(d) may, subject to the

15

provisions of the order, provide for the exercise of the function by the person—

(a)   

unconditionally or subject to such conditions as may be specified in the

order or the arrangements;

(b)   

for such period as may be so specified.

(3)   

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

20

(a)   

may be revoked at any time by the Forestry Commissioners;

(b)   

do not prevent the Forestry Commissioners from exercising the

function to which the arrangements relate;

(c)   

do not affect the responsibility of the Forestry Commissioners in

relation to the function.

25

(4)   

An order under this section may make consequential, supplementary,

incidental or transitional provision, or savings.

(5)   

Where an order under this section transfers a function, the power in subsection

(4) includes power to make consequential or supplementary provision—

(a)   

to modify functions of the transferee;

30

(b)   

to modify the constitutional or funding arrangements of the transferee.

(6)   

Where an order under this section authorises arrangements for the exercise of

a function of the Forestry Commissioners by another person exercising public

functions, the power in subsection (4) includes power to make consequential

or supplementary provision—

35

(a)   

to modify the public functions of that person, or

(b)   

to modify the constitutional or funding arrangements of that person.

(7)   

In considering whether to make an order under this section, the Secretary of

State must have regard to the following objectives—

(a)   

achieving increased efficiency, effectiveness and economy in the

40

exercise of public functions;

(b)   

securing appropriate accountability to Ministers in the exercise of such

functions.

(8)   

The Secretary of State may make an order under this section only if the

Secretary of State considers that—

45

 
 

Public Bodies Bill [HL]

10

 

(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.

19      

Procedure for orders under sections 17 and 18

5

An order under section 17 or 18 may not be made 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

20      

Restriction on creation of functions

10

(1)   

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

authorise the creation of—

(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.

15

(2)   

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

power.

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 person not otherwise exercising public functions if that person

20

has not 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

25

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)   

a power of forcible entry, search or seizure,

30

(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      

Restriction on creation of criminal offences

35

(1)   

An order under the preceding sections 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)   

on summary conviction, with—

40

 
 

Public Bodies Bill [HL]

11

 

(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)   

in relation to England and Wales—

5

(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)   

in the case of an offence triable either summarily or on

10

indictment, twelve months;

(c)   

in relation to Northern Ireland, six months.

(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—

15

(a)   

Part 5 of the Criminal Justice Act 1988, or

(b)   

section 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—

20

(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

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

25

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

months.

(5)   

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

criminal offence.

30

Transfer of property, rights and liabilities

23      

Transfer 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 6;

35

(b)   

the Welsh Ministers, in connection with the transfer of a function under

section 13;

(c)   

the Secretary of State, in connection with the transfer of a function of the

Forestry Commissioners under section 18(1)(c).

(2)   

In the case of a transfer scheme under subsection (1)(a), property, rights and

40

liabilities must be transferred—

(a)   

to 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)   

to an eligible person or a body corporate, in any other case.

45

 
 

Public Bodies Bill [HL]

12

 

(3)   

In the case of a transfer scheme under subsection (1)(b) or (c), property, rights

and liabilities must be transferred to the person to whom the function is

transferred.

(4)   

The things that may be transferred under a transfer scheme include—

(a)   

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

5

(b)   

property acquired, and rights and liabilities arising, after the making of

the scheme.

(5)   

A transfer scheme may make consequential, supplementary, incidental or

transitional provision and may in particular—

(a)   

create rights, or impose liabilities, in relation to property or rights

10

transferred;

(b)   

make provision about the continuing effect of things done by the

transferor in respect of anything transferred;

(c)   

make provision about the continuation of things (including legal

proceedings) in the process of being done by, on behalf of or in relation

15

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

references to the transferee;

(e)   

make provision for the shared ownership or use of property;

20

(f)   

if the TUPE regulations do not apply in relation to the transfer, make

provision which is the same or similar.

(6)   

A transfer scheme may provide—

(a)   

for modification by agreement;

(b)   

for modifications to have effect from the date when the original scheme

25

came into effect.

(7)   

For the purposes of this section—

(a)   

an individual who holds employment in the civil service is to be treated

as employed by virtue of a contract of employment, and

(b)   

the terms of the individual’s employment in the civil service are to be

30

regarded as constituting the terms of the contract of employment.

(8)   

In this section—

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

“TUPE regulations” means the Transfer of Undertakings (Protection of

Employment) Regulations 2006 (SI 2006/246);

35

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.

24      

Transfer schemes: procedure

(1)   

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

40

in an order under sections 1 to 6; 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

included in an order under section 13; but if not so included must be laid before

the National Assembly for Wales after being made.

45

 
 

Public Bodies Bill [HL]

13

 

(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.

(4)   

A transfer scheme made by the Secretary of State under section 23(1)(c) may be

included in an order under section 18; but if not so included must be laid before

5

Parliament after being made.

25      

Transfer 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

10

(b)   

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

such 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

15

to anything transferred;

(b)   

anything 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

20

determining, anything which needs to be determined for the purposes

of 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

25

to anything done for the purposes of or in relation to the transfer;

(b)   

anything 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

30

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.

35

(5)   

In this section—

“relevant tax” means income tax, corporation tax, capital gains tax, stamp

duty 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.

40

Superannuation

26      

Scope 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

 
 

Public Bodies Bill [HL]

14

 

1), after “unless” there is inserted “at the date from which the addition has

effect”.

Final

27      

Orders: supplementary

(1)   

An order under this Act must be made by statutory instrument.

5

(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

conferred on a Minister or the Welsh Ministers.

(4)   

If the draft of an instrument containing an order under this Act (alone or with

10

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      

Interpretation

In this Act—

15

“constitutional arrangements” is to be construed in accordance with

section 3(2) and (3);

“eligible person” has the meaning given in section 1(3);

“enactment” means any primary or subordinate legislation;

“Minister” means—

20

(a)   

a 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);

25

“modify”, in relation to funding arrangements, is to be construed in

accordance with section 4(2);

“primary legislation” means any Act, Act of the Scottish Parliament,

Northern Ireland legislation or Measure or Act of the National

Assembly for Wales;

30

“public function” means a function conferred under an enactment or royal

charter;

“subordinate legislation” means an instrument made under primary

legislation.

29      

Extent

35

(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

extending to any other jurisdiction may also extend there.

 
 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2010
Revised 29 October 2010