Select Committee on Delegated Powers and Deregulation Sixteenth Report



Annex

Part XII: SUPPLEMENTARY PROVISIONS

CLAUSE 317 - POWERS TO AMEND ACTS AND SUBORDINATE LEGISLATION

This clause gives Ministers the power, by Order, where he considers it appropriate to do so in consequence of this Act, to amend Acts passed before "the relevant day" and to amend subordinate legislation made before "the relevant day" or in the Session in which that day falls.

Subsection (1) gives any Minister of the Crown the power to amend, repeal or revoke Acts and subordinate legislation. This power can only be exercised in relation to Acts that are passed before the GLA and its functional bodies are established, and before London Transport and the Receiver for the Metropolitan Police are abolished (the 'relevant day') and, in relation to subordinate legislation in the Session in which the relevant day falls.

Subsection (2) specifies particular powers that are included within a Minister's power to make by Order, incidental, consequential, transitional and supplementary provisions within this Part. It provides that these particular powers apply to any Act, or instrument as is set out in (1) above or to any charter.

Purpose: To allow a Minister to amend Acts and other legislative instruments as is appropriate in consequence of the provisions of this Act.

Reason for proposing delegated powers: This power gives the Secretary of State the necessary powers to change other pieces of legislation to ensure that the provisions of this Bill can be properly implemented and exercised. Analogous provision is contained in legislation dealing with administrative reorganisation, for example section 101 of the Local Government Act 1985 and section 151 of the Government of Wales Act 1998. An example of when we anticipate using these powers, is to enable the Secretary of State to set the GLA's first year budget, and to issue its precepts.

Parliamentary procedure: Negative resolution procedure applies (as in the analogous provisions mentioned above).

CLAUSE 318: TRANSITIONAL AND CONSEQUENTIAL PROVISION.

Subparagraph (1) empowers a Minister to make Orders about the application of this and other Acts.

Subparagraph (2 ) gives some examples of its possible use:

  • to enable powers in the Act to be used before dates specified in the Act.
  • to permit those powers to be exercised by another person or body (such as the Secretary of State).
  • to require powers under any Act or secondary legislation not to be exercised (such as issuing precepts where the Secretary of State is to do so instead, as for 2000-01).
  • to authorise work on preparing for the GLA and for spending on such preparatory costs.

Purpose To smooth the establishment of the new London governance arrangements. An example of its intended use would be to set out the transitional arrangements to apply to the GLA and functional bodies in 2000-01. Adaptation of the financial provisions of this and other Acts will be necessary to cater for the new bodies establishment part way through the financial year.

Reason for proposing delegated power Such provisions are likely to be detailed, complex and substantial in length. They are therefore more appropriate to subordinate legislation. This sort of provision is well precedented in legislation establishing and abolishing public bodies. The precise provisions necessarily vary from Act to Act, but earlier precedents include section 254 of the Local Government Act 1972 (local government re-organisation); sections 100 and 101 of the Local Government Act 1985 (abolition of GLC and metropolitan county councils); sections 19 and 26 Local Government Act 1992 (local government re-organisation); section 94 of the Police and Magistrate's Courts Act (transition to new police authorities); and several sections of the Government of Wales Act 1998 (which set up the Welsh assembly), for example, section 151.

Procedure Negative Resolution.

CLAUSE 319 - TRANSFER OF PROPERTY, RIGHTS OR LIABILITIES

Subsection (1) enables a Minister of the Crown by order to make provision for or in connection with the transfer to any body or person falling within subsection (2) - which lists any successor body, persons or the holder of any office established by or under this Act - such property, rights or liabilities of a body or person falling within subsection (3) - which lists predecessor bodies, persons or the holder of any office affected by this Act - as he may deem appropriate.

The scope of this power is also determined by the provisions of Clause 321 (contracts of employment etc), which provides that the order may also include the transfer of both rights and liabilities under contracts of employment, and members of police forces and other persons not covered by such contracts.

Purpose To enable a Minister of the Crown to make orders to transfer property, rights or liabilities (including contracts of employment) from predecessor to successor bodies.

Reason for delegating power It will be necessary to deal with transfers of property, rights or liabilities on a case by case basis, differing circumstances will apply to the various predecessor and successor bodies. It is, therefore appropriate, for these transfers and related matters to be effected by secondary legislation. The approach set out in this clause is well precedented, similar provisions are contained e.g. in the Local Government Act 1985.

Procedure Negative resolution.

CLAUSE 320 - TRANSFER SCHEMES

Subsection (1) enables a Minister of the Crown to make schemes for the transfer from the Crown to one or more bodies or persons falling within subsection (2) of Clause 319 of such property, rights or liabilities as he may consider appropriate.

Subsection (2) enables a Minister of the Crown to direct a body or person falling within subsection (3) of Clause 319 to make one or more schemes for the transfer to a body or person falling within subsection (2) of Clause 319 such property, rights or liabilities as he may consider appropriate.

Schemes under both subsection (1) and (2) by virtue of Clause 321, may include provision in connection with the transfer of (a) contracts of employment and members of police forces and other persons to whom (a) does not apply.

Purpose To enable a Minister of the Crown to make schemes for transfer from the Crown to successor bodies, and for a Minister of the Crown to direct predecessor bodies to make schemes for transfer to successor bodies.

Reason for delegating power It will be necessary to deal with transfers of property, rights or liabilities on a case by case basis, differing circumstances will apply to the various predecessor and successor bodies. It is therefore appropriate for provision to be made enabling transfers to be made by scheme. This approach is well precedented, similar provisions are contained e.g. in the Regional Development Agencies Act 1998.

Procedure No parliamentary procedure.

CLAUSE 322 - PENSIONS

The clause allows a Minister of the Crown by order to make provision in relation to pensions in respect of individuals affected by the creation of the GLA.

Purpose: Legislative provision is needed to enable pension arrangements to be put in place for staff transferring to successor bodies and new staff recruited to successor bodies as a result of provision made in the Bill. Subsections 2-5 define the range and types of pension schemes that may be included in these provisions. The provision this would allow might, amongst other things, cover the ability to establish new pension schemes, allowing employees in one pension scheme to join another, varying the contribution rates of pension schemes and establishing a body to administer or assist in administering a pension scheme.

Reason for delegating power: Legislative provision for pension arrangements is a matter of great complexity of a sort more appropriately dealt with in secondary legislation. Deliberations on pension matters in relation to the GLA and related bodies are continuing, broad delegated powers will allow the implementation of the approach adopted.

Procedure Negative resolution.

CLAUSE 323 - TRANSFER AND PENSION INSTRUMENTS: COMMON PROVISIONS

Subsection (12) enables a Minister of the Crown by order to confer on any body or person to whom property, rights or liabilities are transferred by a transfer or pension instrument any statutory functions which were previously exercisable by a predecessor body or person.

Purpose to enable a Minister of the Crown to confer any statutory functions which were exercisable by predecessor bodies, persons or office holders in relation to property, rights or liabilities transferred by statutory instrument on any successor body or person.

Reason for delegating power It may be necessary to provide a successor body with the necessary statutory functions to deal with property, rights or liabilities transferred, this subsection enables this to happen. Similar provisions are precedented by, for example, section 100(3) of the Local Government Act 1985.

Procedure Negative resolution.

Subsection (13) enables a Minister of the Crown by order if he considers it appropriate to do so, to modify transfer and pension instruments which have come into force after having consulted any affected body or person. Once altered the statutory instrument shall for all purposes be deemed to have come into force with such modifications as may be specified in the order.

Purpose enables a Minister to modify a transfer or pension instrument which have come into force, after consulting those affected.

Reason for delegating power Circumstances may arise where it is necessary to modify a transfer or pension instrument by order, after the instrument has taken effect. Such provisions are well precedented e.g. in the Regional Development Agencies Act 1998.

Procedure Negative resolution.

CLAUSES 317 AND 318 - ADDITIONAL MEMORANDUM

Powers to amend Acts and subordinate legislation; Transitional and consequential provision

This memorandum supplements the information on these clauses in the Department of the Environment Transport and the Regions' Memorandum to the Delegated Powers Scrutiny Committee.

Clause 317(1) of the GLA Bill gives the Secretary of State the power, by Order, where he considers it appropriate to do so in consequence of the Act or any regulations or orders under the Act, to amend Acts passed and subordinate legislation made before the day on which the Authority and all its functional bodies are all in being and London Regional Transport and the Metropolitan Police Receiver have ceased to exist or in the Session in which that occurs ("the Relevant Day").

Clause 318 gives Ministers the power to make, by order, such incidental, consequential, transitional or supplementary provision as appear to them appropriate in consequence of, or to give full effect to, or for the purposes of this Act, or in consequence of earlier Acts which apply to persons or bodies affected by this Act.

Clause 317(2) provides that powers in Part XII of the Bill, to make incidental, consequential, transitional or supplementary provision by order or regulations, such as the order making power in clause 318, include the power to apply with or without modifications, extend, exclude or amendment, or repeal or revoke primary or secondary legislation.

Reason for seeking delegated powers:

The GLA Bill is a lengthy and complex Bill which provides for the abolition and establishment of several bodies responsible for statutory functions. This will require considerable numbers of consequential amendments and repeals to a large body of existing legislation. For example, in relation to the police, there are numerous statutory references that will need to be amended to insert references to the Metropolitan Police Authority or amending redundant references to the Receiver of the Metropolitan Police.

Although the Government will endeavour to ensure that the Bill provisions are comprehensive, experience shows that in exercises of this kind, and in particular with Bills of such a wide-ranging and complex nature, some legislative references will inevitably be missed. That is why similar provisions have been included in previous legislation effecting reorganisations of statutory bodies.

Clauses 317 and 318 are also intended to enable orders to be made facilitating the initial establishment of the GLA. This will be very complex, involving the abolition and establishment of a number of bodies mid-way through a financial year. It is further complicated by provisions in the Bill (in clauses 230-236) for the continued existence of London Regional Transport following the creation of Transport for London pending completion of the Public Private Partnership for London Underground. During that period they will need to share a number of statutory powers, duties and responsibilities. This will require a considerable number of transitional changes to statutory references, both in this Bill and in other Acts.

A further example of the kind of amendments to primary legislation envisaged under clauses 317 and 318 relates to budget calculations. This Bill provides for the abolition of the Receiver of the Metropolitan Police District, responsible for police, magistrates course and probation services in London. The Receiver will be responsible for police for the first part of the 2000/2001 financial year, until the MPA is created. However, the Receiver will not be abolished until alternative arrangements are made for the funding of probation and magistrates courts services in London. Until those arrangements are made, the statutory provisions in the Local Government Finance Act 1992 which set out how the Receiver calculates its budget will require amending to ensure that the Receiver doesn't include in its budget sums for police services which it will provide for the first half of the 2000/2001 financial year, as these costs will be included in the MPA's budget.

 Whilst it was considered important that Parliament should have an opportunity to consider orders providing for the type of arrangements described in the two paragraphs above, if it so chooses, it was not considered appropriate to include these detailed transitional provisions in what is already a very long and complex Bill.

In respect of their potential uses, the powers in clauses 317 and 318 are limited to making repeals, amendments and revocations in consequence of the Bill or for incidental, supplementary or transitional purposes.

The memorandum to the Committee identifies precedents for such a provision in s101 of the Local Government Act 1985 and s151 of the Government of Wales Act 1998. Further precedents include s254(2)(c) of the Local Government Act 1972 and s84 of the London Government Act 1963.

Examples of orders made under such provisions include:

Under the 1972 Act, the Local Authorities etc (Miscellaneous Provisions) Orders 1974 (Nos 2, 3 ,4 and 5) (respectively SI 1974/595, 1974/968, 1974/1351, 1974/2044). Orders picking up missed consequentials in enactments were still being made in 1977 (eg the Local Authorities etc (Miscellaneous Provision) Order 1977 (SI 1977/293).

Under the 1985 Act, the Local Government Reorganisation (Miscellaneous Provision) (No 4) Order 1986 (SI 1986/452). Missed consequentials were still being identified in 1988 see the Local Government Reorganisation (Miscellaneous Provision) Order 1988 (SI 1988/1955).

As with provisions in the 1963, 1972 and 1985 Acts, orders under clause 317 are subject to the negative resolution procedure.

May 1999


 
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