House of Lords - Explanatory Note
Culture And Recreation Bill [H.L.] - continued          House of Lords

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Powers of entry and inspection

Clause 13: Persons authorised by the safety authority or the Secretary of State

51. In the case of sports grounds, section 11 of the 1975 Act and section 35 of the 1987 Act each confer certain powers of entry and inspection on persons authorised by specific bodies or persons. Because of the functions conferred by the Bill on the Secretary of State and the Safety Authority, clause 13 extends those powers of entry and inspection to persons authorised by the Safety Authority and, in the case of the 1987 Act, to persons authorised by the Secretary of State.

Interpretation and related consequential provision

Clause 14: Designated football matches and other definitions etc.

52. Clause 14 provides the power for the Secretary of State to make orders designating football matches for the purposes of Part I of the Bill and transitionally provides for any order which designates football matches for the purposes of Part I of the 1989 Act in force when subsection (1) comes into force to have effect as if it were an order made under this clause.

53. Subsection (5) adds designated football matches under Part I of the Bill to the matches to which the offence under section 166 of the Criminal Justice and Public Order Act 1994 applies (sale of tickets by unauthorised persons).

Commencement and extent

54. Part I will be brought into force by commencement order and except for paragraphs 13 to 15 of Schedule 1 (which amend enactments relating to the Parliamentary Commissioner, Parliamentary and Northern Ireland Assembly disqualification and freedom of information, which extend throughout the United Kingdom) extends to England and Wales only: see clause 52(3) and (5) to (7).).

Part II: Parks Regulation

Fixed penalty offences

Clause 15: Fixed penalty offences

55. Subsection (1) modifies the regulation-making power in section 2 of the Parks Regulation (Amendment) Act 1926 so as to permit the Secretary of State to designate regulations made under that section as 'fixed penalty regulations'.

56. Subsection (2) provides that an offence committed by infringement of a fixed penalty regulation shall be called a 'fixed penalty offence'.

57. The Secretary of State currently intends to designate the following regulations of the Royal Parks and other Open Spaces Regulations 1997 (SI 1997/1639) as fixed penalty regulations:

  • regulation 3(2) and (3) (dropping litter);

  • regulation 3(4) (use of a pedal cycle other than in designated areas);

  • regulation 3(4)(a) (use of pedal cycles off park roads and cycle paths);

  • regulation 3(5) (control of animals);

  • regulation 3(6) (animal fouling);

  • regulation 3(11) (using cycles or vehicles without appropriate lighting); and

  • regulation 3(12) (driving vehicles off a park road).

Clause 16: Fixed penalty notices

58. Subsection (1) allows a constable to give a notice to a person who he has reason to believe is committing, or has just committed, a fixed penalty offence. The notice offers the person an opportunity to discharge any liability to conviction by paying a fixed penalty.

59. Subsection (2) allows the Secretary of State to specify, by order, the level of the fixed penalty. The level may be different for different fixed penalty offences (see clause 48(1)(a)), but it will be subject to a maximum of half the amount payable on conviction (subsection (3)). The Secretary of State currently intends to fix a level of £25 in respect of a breach of the regulations listed above as possible fixed penalty regulations.

60. The effect of subsection (4) is to give a person 28 days in which to avoid prosecution by paying a fixed penalty. During this period no proceedings will be taken. If the person pays the fixed penalty before the end of the period, no proceedings will be taken. The notice must contain sufficient particulars to give reasonable information of the offence (subsection (5)).

61. Subsection (6) sets out requirements as to what information should be contained in the notice. This includes information as to the method of payment. At present, the Secretary of State intends that fixed penalties may be paid by cheque, giro or postal order and may be sent by 1st class or 2nd class post to The Royal Parks, The Old Police House, Hyde Park, London, W2 2UH. Subsection (7) provides that the form of a notice shall be such as the Secretary of State may direct.

62. Subsection (8) allows the Secretary of State to authorise a person to accept payments on behalf of the Secretary of State.

63. Although the notes on clauses 15 and 16 refer to the Secretary of State, the functions in question are exercisable instead by the Minister of Agriculture, Fisheries and Food in the case of Kew Gardens and certain other open spaces (see section 48 of the Agriculture (Miscellaneous Provisions) Act 1968). Accordingly, clause 16 is drafted in terms of "the relevant Minister", which is defined in subsection (9) as meaning the Minister of Agriculture, Fisheries and Food, in relation to fixed penalty offences under regulations made by him and as meaning the Secretary of State in any other case.

Clause 17: Fixed penalties: further provisions

64. Subsections (1) and (2) make further provision in relation to the payment of a fixed penalty by post. Subsection (3) provides that a certificate may be given in court proceedings which will be evidence of the facts stated in it.

Miscellaneous

Clause 18: Amendment of Parks Regulation (Amendment) Act 1926

65. Section 2(2) of the Parks Regulation (Amendment) Act 1926 requires that draft regulations be laid before each House of Parliament for 21 days before they can be made.

66. The Statutory Instruments Act 1946 created standard procedures (the negative and the affirmative resolution procedures) for dealing with statutory instruments which have been made and statutory instruments which are laid in draft before being made.

67. Section 6(2) of the 1946 Act has already altered the 21 day period to 40 days.

68. The effect of section 2(2) of the 1926 Act, as substituted by clause 18, is that future parks regulations will be subject to the negative resolution procedure described in section 5(1) of the 1946 Act. That means that the regulations will first be made and then laid before Parliament for a period of 40 days during which time a resolution may be passed by either House to annul them.

69. Subsection (2) treats the new section 2(2) as a "pre-commencement enactment" for the purposes of the Scotland Act 1998. The Scotland Act 1998 made special provision for adapting pre-existing enactments to Scottish Parliamentary procedure and the new constitutional settlement. The new section 2(2) will have effect with the benefit of that provision.

Commencement and extent

70. Part II comes into force two months after Royal Assent (see clause 52(2)(a)). Clauses 15 to 17 extend to England and Wales only and clause 18 extends to England and Wales and Scotland: see clause 52(5), (6) and (7)(a).

Part III: The Historic Buildings and Monuments Commission for England

Underwater archaeology

Clause 19: New functions relating to underwater archaeology

71. Section 33 of the National Heritage Act 1983 sets out English Heritage's principal functions. Subsection (2) amends that section to extend the definition of "ancient monument" to include vehicles, vessels, aircraft and other moveable structures. Subsection (3) amends that section to provide that references to ancient monuments "in England" include ancient monuments in, on or under the seabed within the seaward limits of the United Kingdom territorial waters adjacent to England. United Kingdom territorial waters are those up to the 12 mile limit. The Secretary of State is given power to define, by order, which of the UK territorial waters are to be treated as adjacent to England for the purposes of section 33.

72. As a result of these changes English Heritage's functions under section 33 relating to ancient monuments can be exercised in relation to a wider range of ancient monuments than before, including in particular those in the specified territorial waters.

Clause 20: Amendments consequential on section 19

73. Clause 20 amends section 34 of the National Heritage Act 1983 and sections 17 and 24 of the Ancient Monuments and Archaeological Areas Act 1979. All of these sections confer functions on English Heritage that relate to ancient monuments. As a result of the amendments, the meaning of "ancient monument" in those sections is consistent with its meaning in section 33 of the 1983 Act (as amended by clause 19).

74. Subsection (1) amends section 34 of the 1983 Act which authorises the Secretary of State for Culture, Media and Sport to direct English Heritage to exercise certain of his management functions in relation to ancient monuments or historic buildings in England. The amendments ensure that the ancient monuments in England to which section 34 relates are the same as those to which section 33 (as amended by clause 19) relates.

75. Subsections (2) and (3) amend sections 17 and 24 of the Ancient Monuments and Archaeological Areas Act 1979. Section 17(2) authorises English Heritage to enter into agreements with the occupiers of ancient monuments in England, or land adjoining such monuments. Section 24(3A) authorises English Heritage to assist in the acquisition or preservation of ancient monuments in England and to assist in the provision of facilities for the public at such monuments. The amendments made by subsections (2) and (3) ensure that for these purposes ancient monuments in England include those in, on or under the seabed (in line with the changes made to section 33 of the National Heritage Act 1983 by clause 19(3)). The definition of "ancient monument" in the 1979 Act already extends to vehicles, vessels, aircraft and other moveable structures, by virtue of section 61(7)(c) of that Act.

Clause 21: Exercise of certain ministerial functions

76. Clause 21 gives the Secretary of State the power to direct English Heritage to undertake any of his administrative functions which are exercisable in relation to ancient monuments and historic buildings. It is expected that the power will be used initially to direct English Heritage to run the Secretariat for the Advisory Committee on Historic Wreck Sites (a cross-border public authority under the Scotland Act 1998).

77. Clause 21 will also be used to direct English Heritage to take over the Secretary of State's management functions under the contract - currently with the Archaeological Diving Unit at St. Andrews University - relating to the provision of archaeological diving services and technical advice on designated wreck sites throughout the UK.

78. In carrying out both of the these functions it is expected that English Heritage will consult the heritage bodies in Scotland, Wales and Northern Ireland.

Trading functions

Clause 22: New trading functions of Commission

79. Clause 22 amends the National Heritage Act 1983 so as to expand the functions of English Heritage.

80. Subsection (1) confers on English Heritage the power to produce souvenirs relating to ancient monuments or historic buildings in England and the power to sell souvenirs (whether or not they relate to such monuments or buildings). In exercising these new powers English Heritage is subject to the overriding duties imposed by section 33(1) of the 1983 Act. These duties include:

  • a duty to secure the preservation of ancient monuments and historic buildings situated in England; and

  • a duty to promote the public's enjoyment of, and advance their knowledge of, ancient monuments and historic buildings situated in England and their preservation.

81. Subsection (2) inserts two new sections after section 33 of the 1983 Act:

  • the new section 33A confers on English Heritage new powers to produce goods and provide services relating to monuments and buildings outside the United Kingdom and its territorial waters. English Heritage already has equivalent powers in relation to monuments and buildings situated in England (and the adjacent territorial waters) by virtue of its general powers under section 33 (as amended by clauses 19 and 22(1) of the Bill).

  • the new section 33B authorises the Commission to exploit intellectual property and other intangible assets relating to monuments and buildings situated either in England (on land or below the mean low water mark) or outside the United Kingdom (and its territorial waters).

Clause 23: Objects of companies formed by the Commission

82. Section 35 of the National Heritage Act 1983 allows English Heritage to form trading companies (or participate in their formation). But the section provides that such companies may only have a limited range of objects. The effect of clause 23 is to extend that range of objects. The permitted objects of a company formed by English Heritage now extend to all those things that English Heritage itself is authorised to do under the new sections 33A and 33B (inserted by clause 22(2)).

Protected wrecks

Clause 24: Assistance in relation to protected wrecks

83. English Heritage currently has powers, under section 24 of the Ancient Monuments and Archaeological Areas Act 1979 (as amended by clause 20 of the Bill), to incur expenditure on the acquisition and preservation of ancient monuments, etc. Those powers do not, however, extend to wrecks designated under the Protection of Wrecks Act 1973 because such wrecks are not treated as "ancient monuments" for he purposes of the 1979 Act (see section 61(8)(b) of that Act). Clause 24 inserts into the National Heritage Act 1983 a new section 33C which authorises English Heritage to incur expenditure on the archaeological investigation, preservation and maintenance of wrecks designated under the Protection of Wrecks Act 1973.

Commencement and extent

84. Part III comes into force two months after Royal Assent. Except for clause 20(2) and (3) (which extends to England and Wales and Scotland) and clause 21 (which relates to administrative functions exercisable by the Secretary of State throughout the United Kingdom), Part III extends to England and Wales only. See clause 52(2)(a), (4)(c), (5), (6) and (8)(a).

Part IV: Culture Online

Clause 25: Establishment of Culture Online

85. Clause 25 provides for the establishment of a new statutory corporation, to be known as Culture Online, with the object set out in subsection (2). The object of Culture Online is confined to provision of materials and services of benefit to users in England but people throughout the world will have access to the materials through the Internet. Culture Online will set the strategic direction for this new service, determine priorities for the subject matter of the materials and services to be provided and arrange for their delivery either through Culture Online's employees or by contracts or other arrangements with third parties.

86. Schedule 2, which is introduced by subsection (4), makes provision in relation to Culture Online. Paragraph 1 provides that Culture Online shall have between 9 and 16 members (including a chairman) appointed by the Secretary of State. They may be appointed for terms of up to 5 years (paragraph 2(2)) and may be re-appointed (paragraph 4). The Secretary of State may by order vary the maximum and minimum number of members and give others (including Culture Online) the function of appointing members (paragraph 1). He may, under paragraph 3(2), remove a member from office on the grounds that he has been absent from meetings for three months, has become bankrupt or is, in the opinion of the Secretary of State, unable or unfit to discharge the functions of his office.

87. Schedule 2 also provides (among other things) that Culture Online may delegate the exercise of its functions to the chairman or any other member, a committee (and a committee may include persons who are not members of Culture Online) or staff (paragraph 7); may remunerate members and pay them other sums (paragraphs 9 and 10); and may employ staff, and pay them (paragraph 11). Provision for staff pensions is made in clauses 46 and 47. Paragraph 12 requires Culture Online to produce an annual report to the Secretary of State which he must lay before Parliament. Paragraph 13 requires proper records and accounts to be kept: these are to be audited by the Comptroller and Auditor General. Complaints about Culture Online may be taken to the Parliamentary Commissioner (paragraph 15).

Clause 26: Functions of Culture Online

88. Subsection (1) is the source of Culture Online's main powers. It is expected that Culture Online will use these powers to create and deliver materials and services such as:

  • text, fixed and moving images, and sound, relating to artistic, cultural, historic and scientific themes, objects, performances, events, and places. The materials would be drawn from those held in institutions such as museums, galleries, heritage properties, libraries and theatres and scientific and other institutions;

  • other new materials including, for example, new art forms, digital film and games;

  • educational support packages using cultural material of the kinds mentioned above both to support the national curriculum and for wider audiences including online courses and lectures, and materials and services to support training in the arts and creative industries;

  • interactive services, for example electronic discussion groups;

  • a 'portal' (a device to guide Internet users to other websites). The website would provide links to related cultural sites, such as museums and galleries, performing arts and film institutions and heritage properties.

89. Subsection (1)(b) requires that these materials and services be made available to the general public or to specific groups.

90. Subsection (2) provides that one way in which Culture Online may seek to achieve its objectives is by entering into arrangements under which other persons carry on the activities mentioned in subsection (1) on behalf of Culture Online.

91. Subsection (3) provides for powers of a more technical nature that Culture Online will need to achieve its objects and exercise its principal powers as set out in subsection (1). In particular:

  • Subsection (3)(a) enables Culture Online to enter into contracts with third parties for the delivery of all or some of its materials or services. Thus, for example, Culture Online will be able to enter into agreements with 'content holding' institutions such as museums and galleries and others and with other expert organisations for the production of digitised materials under such agreements as it sees fit. It is also free to contract with others for delivery of other essential services such as management of Culture Online's website and technical infrastructure and marketing or other ancillary activities;

  • Subsection (3)(b) and (c) gives Culture Online power to offer financial assistance to individuals or organisations in the form of a grant, loan guarantee or indemnity subject to such conditions as it may see fit. These conditions might include repayment on failure to complete the grant conditions or the right to a share in the returns on a project which returns a profit. Culture Online will be able to invite and assess applications and to solicit applications;

  • Subsection (3)(f) enables Culture Online to form companies (for example, wholly-owned subsidiaries or companies formed jointly with other persons) or acquire interests in other companies (for example, buying shares in it). Note also that subsection (3)(g) provides that Culture Online may act in partnership, or by way of a joint venture, or otherwise with other persons.

92. The Department intends to use the Financial Memorandum governing payments to Culture Online to require it to obtain the Secretary of State's approval for: provision of, and attaching conditions to, a loan, guarantee or indemnity; taking charges or other security over land or other property; and forming or acquiring or disposing of interests in bodies corporate. In addition, it is intended that the Financial Memorandum will require the consent of HM Treasury for any proposal for borrowing money and granting charges or other forms of security over land or other property.

93. The intention is that Culture Online will offer the bulk of its materials and services free to the end user. However, subsection (4) enables Culture Online to require payment for materials and services, and Culture Online may use this power (for instance) to charge end users for specialist services such as on-line courses or master-classes, or for particular products it may produce. Culture Online will be able to retain and re-invest the income it generates from sales of materials and services.

Clause 27: Directions by the Secretary of State

94. Clause 27 gives the Secretary of State power to give directions to Culture Online as to the exercise of its functions. This could be used to set priorities, for example, with regard to target audiences, or the materials or services required to meet the needs of those audiences or to ensure comprehensive coverage in terms of geographical or social groups and to set performance targets including financial targets. It could also be used to give more detailed directions about, for example, the form of Culture Online's accounts (see paragraph 13 of Schedule 2).

95. Clause 49 of the Bill provides that directions under clause 27 must be in writing and may be varied or revoked. It also imposes on Culture Online an obligation to comply with any direction given.

Clause 28: Finance

96. Clause 28 authorises the Secretary of State to pay money to Culture Online.

Commencement and extent

97. Part IV will be brought into force by commencement order and, except for the amendments made by paragraphs 14 to 17 of Schedule 2 (which have the same extent as the enactments to which they relate), this Part extends to England and Wales only: see clause 52(3) and (5) to (7).The fact that these provisions form part of the law of England and Wales does not affect the fact that Culture Online must (by virtue of clause 25(2)) aim its materials and services at users in England.

Part V: Miscellaneous Provisions

Grants

Clause 29: Grants relating to the arts

98. The Government has, for over 50 years, provided financial support to the Arts Councils (first the Arts Council of Great Britain and now the Arts Council of England) by way of grant-in-aid paid under the Appropriation Acts. Clause 29 provides for payments by Government to bodies such as the Arts Council of England to be put on a statutory basis, in line with the Public Accounts Concordat 1932. The changes do not affect the basis for payments to the Scottish Arts Council or the Arts Council of Northern Ireland or to the Arts Council of Wales, which is funded by the Welsh Assembly. Although the clause extends to England and Wales it is not the intention that this power will be exercised in relation to Wales.

Clauses 30 to 32: Grants relating to films, to architecture, and to museums, galleries, etc

99. These clauses provide a statutory basis for the Secretary of State to pay grants in connection with the film industry, architecture and museums, etc. Grants may be paid under these powers to any person, but they are initially expected to be used to support the statutory corporations established under clauses 33 and 34.

New statutory bodies

Clause 33: Incorporation of new statutory corporations

100. The Film Council, the Commission for Architecture and the Built Environment and Resource were each established in 1999 as companies limited by guarantee, with the Secretary of State for Culture, Media and Sport having overall control of each company, and registered under the Companies Act 1985. Subsection (2) gives the Secretary of State power to convert any one or more of these companies into a statutory corporation. Alternatively, he can use his order-making power to create a statutory corporation, transfer the property, staff, rights and liabilities of the company concerned to that statutory corporation and dissolve the relevant company.

101. Subsection (3) makes further provision about what can be included in an order under subsection (2). For example, it may include provision relating to any of the matters listed in Schedule 3 to the Bill. These include the appointment, tenure and remuneration of the chairman and members, the appointment and terms and conditions of appointment of employees, the name and constitution of the three corporations; the formation of committees; the keeping of accounts and the preparation of reports.

102. Where an order has been made under subsection (2), subsection (5) authorises the Secretary of State to make further provision of the kind mentioned in subsection (3) amending or supplementing the original order (or an earlier order under subsection (5)).

Clause 34: Provision supplemental to section 33

103. Clause 34 requires the Secretary of State to provide for the National Audit Office to audit the accounts of any statutory corporation incorporated under and constituted in accordance with clause 33. Subsections (2) and (3) make provision as to the status of any statutory corporation (it is not to be regarded as a servant or agent of the Crown), its members and staff (they are not to be regarded as civil servants) and its property (it is not to be regarded as Crown property).

Films

Clause 35: Certification

104. Film makers may apply to the Secretary of State for Culture, Media and Sport for certification of their work as a British film for the purpose of gaining tax and other benefits. For a film to qualify it must fulfil either the conditions set out under Schedule 1 to the Films Act 1985 or the terms of an international co-production agreement to which the UK is party. Films made under the terms of international film co-production agreements between the UK and other countries or organisations are British films for the purposes of Schedule 1 of the Films Act 1985 and may be certified. Paragraph 4(7) of Schedule 1 provides for such films to be treated as British and an Order in Council is required for each agreement. The UK has seven bi-lateral agreements with other countries and is also party to the Council of Europe Convention on Cinematographic Co-production. The agreements provide for competent authorities designated by each party to the agreement concerned to assess whether films comply with the terms of that agreement.

105. Certification as a qualifying film is necessary for tax benefits (set out in section 68 of the Capital Allowances Act 1990, sections 41 and 42 of the Finance (No.2) Act 1992 and section 48 of the Finance (No.2) Act 1997). The Finance (No.2) Act 1997 introduced 100 per cent write off for production and acquisition expenditure for British qualifying films costing £15 million or less. Certification may also be necessary to qualify for National Lottery funding from the Film Council and funding from British Screen Finance or the European Co-production Fund.

106. About 300 certificates are granted a year to producers or acquirers of films, and about £500 million worth of tax is written off every year. The Secretary of State can also revoke certificates and issue duplicate certificates.

107. Film certification involves a large amount of casework and it is the Department's policy to delegate as much of this as possible to its sponsored bodies, allowing the Department to concentrate more on wider policy objectives. The Government considers that the Film Council is sufficiently knowledgeable and possesses a high level of expertise in these complex areas to allow it to carry out this role in an effective manner. The Bill does not actually specify the Film Council in this role and the reference throughout is to an "appointed person". However, the Government envisages that the person appointed will be the Film Council.

108. In addition to the power to certify a film as British, Schedule 1 to the Films Act 1985 allows the Secretary of State to exercise a number of other functions. These are:

  • to direct that a number of films shall be treated as a single film for the purposes of the Schedule;

  • to require the production of books, documents and other information relating to the application;

  • to direct that sub-paragraph (1) of paragraph 5 of Schedule 1 (definition of a film for the purposes of certification) shall not apply if, in his opinion, it is a documentary and its subject matter makes it appropriate for sub-paragraph (1) not to be applied;

  • to direct alteration of the labour costs of the film if it appears that the amounts shown in the application are not bona fide payments.

109. Clause 35 introduces Schedule 4 which inserts a new Schedule 1A into the Films Act 1985. Part I of the new Schedule 1A enables the Secretary of State to appoint a person (which is intended to be the Film Council) to exercise functions relating to the certification of films under Schedule 1 to the 1985 Act instead of the Secretary of State. Part II of the new Schedule 1A would allow the Secretary of State to appoint a person (again probably the Film Council) to make recommendations as to the way in which the Secretary of State could exercise his Schedule 1 functions. The Secretary of State would need to be satisfied that proper arrangements were in place before delegating any of the above functions.

 
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Prepared: 15 December 2000