Public Bodies Bill [HL]

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.