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Local Government Bill


Local Government Bill
Part 8 — Miscellaneous and general
Chapter 1 — Miscellaneous

    54

 

 99    Procedure for orders under section 98

     (1)    Before making an order under section 98, the Secretary of State shall consult—

           (a)           such best value authorities as appear to him to be likely to be affected

by his proposals, and

           (b)           such other persons as appear to him to be representative of interests

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likely to be so affected.

     (2)    If following consultation under subsection (1) and, where the proposals relate

to best value authorities in Wales, consultation under subsection (7)(a) of

section 98, the Secretary of State proposes to make an order under that section,

he shall lay before each House of Parliament a document which—

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           (a)           explains his proposals,

           (b)           sets them out in the form of a draft order,

           (c)           gives details of consultation under subsection (1), and

           (d)           where the proposals relate to best value authorities in Wales, sets out

the views of the National Assembly for Wales.

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     (3)    Where a document relating to proposals is laid before Parliament under

subsection (2), no draft of an order under section 98 to give effect to the

proposals (with or without modification) shall be laid before Parliament until

after the expiry of the period of sixty days beginning with the day on which the

document was laid.

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     (4)    In calculating the period mentioned in subsection (3), no account shall be taken

of any time during which —

           (a)           Parliament is dissolved or prorogued, or

           (b)           either House is adjourned for more than four days.

     (5)    In preparing a draft order under section 98 the Secretary of State shall consider

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any representations made during the period mentioned in subsection (3)

     (6)    A draft order laid before Parliament in accordance with section 98(9) must be

accompanied by a statement of the Secretary of State giving details of—

           (a)           any representations considered in accordance with subsection (5), and

           (b)           any changes made to the proposals contained in the document laid

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before Parliament under subsection (2).

     (7)    Nothing in this section applies to an order under section 98 which is made only

for the purpose mentioned in section 98(10).

Performance categories

 100   Categorisation of English local authorities by reference to performance

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     (1)    The Audit Commission must from time to time produce a report on its findings

in relation to the performance of English local authorities in exercising their

functions.

     (2)    A report under subsection (1) must (in particular) categorise each English local

authority to which the report relates according to how the authority has

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performed in exercising its functions.

     (3)    As regards each report produced under subsection (1), the Audit

Commission—

           (a)           must send a copy of the report to the Secretary of State, and

 

 

Local Government Bill
Part 8 — Miscellaneous and general
Chapter 1 — Miscellaneous

    55

 

           (b)           must publish the report.

     (4)    Where the Secretary of State receives a report produced under subsection (1),

he may by order make provision categorising the English local authorities to

which the report relates in accordance with their categorisation in the report.

     (5)    In making an order under subsection (4), the Secretary of State may depart

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from the categorisation in the report only for the purpose of correcting any

clerical or typographical error in the report notified to him by the Audit

Commission.

     (6)    An order under subsection (4) may provide for the categorisation for which it

provides to have effect—

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           (a)           from such time as may be specified by the order;

           (b)           only for such period as may be specified by the order.

     (7)    In this section—

                    “the Audit Commission” means the Audit Commission for Local

Authorities and the National Health Service in England and Wales;

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                    “English local authority” means—

                  (a)                 a county council in England,

                  (b)                 a district council,

                  (c)                 a London borough council,

                  (d)                 the Common Council of the City of London in its capacity as a

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local authority, or

                  (e)                 the Council of the Isles of Scilly.

 101   Exercise of powers by reference to authorities’ performance categories

     (1)    The powers mentioned in subsection (2) may (in particular) be exercised for

making provision in relation to a description of authority framed by reference

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to English local authorities that from time to time are, by reason of an order

under section 100(4), of a particular category.

     (2)    Those powers are the powers—

           (a)           to make orders under section 70 of the Local Government and Housing

Act 1989 (c. 42);

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           (b)           to make orders under sections 4 to 6, 16 and 19 of the Local Government

Act 1999 (c. 27);

           (c)           to make orders under sections 3, 5 and 6 of the Local Government Act

2000 (c. 22);

           (d)           to make orders under section 1 of the Regulatory Reform Act 2001 (c. 6);

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           (e)           to make orders under sections 96 to 98 of this Act;

           (f)           to make regulations under section 119 of this Act.

     (3)    Schedule 3 (which amends certain of the provisions conferring, or governing

the exercise of, those powers and does so for purposes of their exercise in

relation to authorities, whether or not English local authorities, to which they

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apply) has effect.

     (4)    The Secretary of State may by order amend subsection (2) for the purpose of

adding a reference to a power to make provision by order or regulations that

is exercisable in relation to all or any English local authorities (whether or not

also exercisable in relation to any other person or body).

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Local Government Bill
Part 8 — Miscellaneous and general
Chapter 1 — Miscellaneous

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     (5)    The Secretary of State may, for the purpose mentioned in subsection (6), by

order make provision amending the enactments conferring, or governing the

exercise of, a power added by an order under subsection (4) to those mentioned

in subsection (2).

     (6)    That purpose is enabling the power, so far as exercisable in relation to English

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local authorities, to be exercised—

           (a)           in relation to—

                  (i)                 all the English local authorities in relation to which it is

exercisable,

                  (ii)                particular English local authorities, or

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                  (iii)               particular descriptions of English local authority;

           (b)           differently in relation to different English local authorities or

descriptions of English local authority.

     (7)    An order under subsection (4) or (5) shall not be made unless a draft of the

statutory instrument containing it has been laid before, and approved by a

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resolution of, each House of Parliament.

     (8)    In this section “English local authority” has the meaning given by section

100(7).

Contracting-out

 102   Staff transfer matters: general

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     (1)    In exercising a power to contract with a person for the provision of services, a

best value authority (in Scotland, a relevant authority) must—

           (a)           deal with matters affecting—

                  (i)                 who will be the employer of existing staff if a contract is entered

into and carried out, or

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                  (ii)                what will be the terms and conditions of employment of

existing staff, or the arrangements for their pensions, if their

employer changes as a result of a contract being entered into

and carried out,

                         in accordance with directions given to it by the appropriate person;

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           (b)           have regard to guidance issued to it by the appropriate person on

matters relating to the employment or pensions of existing staff.

     (2)    In subsection (1), references to existing staff, in relation to a contract for the

provision of services, are to staff who before the contract is carried out are

engaged in the provision of any of the services.

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     (3)    Where the provision of any services under a contract with a best value

authority (in Scotland, a relevant authority) for their provision is to cease in

circumstances where they are to be provided instead by members of the

authority’s staff, the authority shall comply with directions given to it by the

appropriate person for the purpose of requiring it to offer employment to staff

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who, before the services cease to be provided under the contract, are engaged

in the provision of any of the services.

     (4)    The duties under Part 1 of the Local Government Act 1999 (c. 27) (best value)

of a best value authority have effect subject to subsections (1) and (3).

 

 

Local Government Bill
Part 8 — Miscellaneous and general
Chapter 1 — Miscellaneous

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     (5)    The duties under sections 1 and 2 of the Local Government in Scotland Act

2003 (asp 1) (best value) of a relevant authority have effect subject to

subsections (1) and (3).

     (6)    Directions given, or guidance issued, for the purposes of subsection (1) or (3)—

           (a)           may be addressed to—

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                  (i)                 all best value authorities (or, as the case may be, relevant

authorities), or

                  (ii)                authorities of a particular description;

           (b)           may be different for different cases or authorities.

     (7)    For the purposes of this section, the Secretary of State is the “appropriate

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person” in relation to a best value authority in Wales that is—

           (a)           a police authority established under section 3 of the Police Act 1996

(c. 16), or

           (b)           a fire authority constituted by a combination scheme.

     (8)    In this section—

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                    “appropriate person”, in relation to Scotland, means the Scottish

Ministers; and

                    “relevant authority” means—

                  (a)                 a council constituted under section 2 of the Local Government

etc. (Scotland) Act 1994 (c. 39),

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                  (b)                 the Strathclyde Passenger Transport Authority, or

                  (c)                 any other body to which Part 1 of the Local Government in

Scotland Act 2003 (asp 1) (best value and accountability)

applies.

 103   Staff transfer matters: pensions

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     (1)    The appropriate person shall exercise his power to give directions under

section 102(1) so as to secure that where a local authority is contracting with a

person (“the contractor”) for the provision of services that are to be provided

under a contract instead of by employees of the authority, it does so on terms—

           (a)           that require the contractor, in the event of there being any transferring

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employees, to secure pension protection for each of them, and

           (b)           that, so far as relating to the securing of pension protection for a

transferring employee, are enforceable by the employee.

     (2)    For the purposes of subsection (1)—

           (a)           “transferring employee” means an employee of the authority whose

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contract of employment becomes, by virtue of the application of the

TUPE regulations in relation to what is done for the purposes of

carrying out the contract between the authority and the contractor, a

contract of employment with someone other than the authority, and

           (b)           “pension protection” is secured for a transferring employee if after that

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change in his employer he has, as an employee of his new employer,

rights to acquire pension benefits and those rights—

                  (i)                 are the same as, or

                  (ii)                under the directions count as being broadly comparable to or

better than,

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                         those that he had as an employee of the authority.

 

 

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Part 8 — Miscellaneous and general
Chapter 1 — Miscellaneous

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     (3)    The appropriate person shall exercise his power to give directions under

section 102(1) so as to secure that where—

           (a)           a local authority has contracted with a person (“the first contractor”) for

the provision of services,

           (b)           the application of the TUPE regulations in relation to what was done for

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the purposes of carrying out the contract between the authority and the

first contractor resulted in employees of the authority (“the original

employees”) becoming employees of someone other than the authority,

and

           (c)           the authority is contracting with a person (“the subsequent contractor”)

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for the provision of any of the services,

            the authority contracts with the subsequent contractor on terms satisfying the

requirements of subsection (4).

     (4)    Those requirements are that the terms—

           (a)           require the subsequent contractor, in the event of there being any

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transferring original employees, to secure pension protection for each

of them, and

           (b)           so far as relating to the securing of pension protection for an original

employee, are enforceable by the employee.

     (5)    For the purposes of subsection (4)—

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           (a)           “transferring original employee” means an original employee—

                  (i)                 whose contract of employment becomes, by virtue of the

application of the TUPE regulations in relation to what is done

for the purposes of carrying out the contract between the

authority and the subsequent contractor, a contract of

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employment with someone other than his existing employer,

and

                  (ii)                whose contract of employment on each occasion when an

intervening contract was carried out became, by virtue of the

application of the TUPE regulations in relation to what was

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done for the purposes of carrying out the intervening contract,

a contract of employment with someone other than his existing

employer;

           (b)           “pension protection” is secured for a transferring original employee if

after the change in his employer mentioned in paragraph (a)(i) he has,

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as an employee of his new employer, rights to acquire pension benefits

and those rights—

                  (i)                 are the same as, or

                  (ii)                under the directions count as being broadly comparable to or

better than,

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                         those that he had before that change.

     (6)    In subsection (5)(a)(ii), “intervening contract” means a contract with the

authority for the provision, at times after they are provided under the contract

with the first contractor and before they are to be provided under a contract

with the subsequent contractor, of the services to be provided under the

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contract with the subsequent contractor.

     (7)    Any expression used in this section, and in the TUPE regulations, has in this

section the meaning that it has in the TUPE regulations.

     (8)    In this section—

 

 

Local Government Bill
Part 8 — Miscellaneous and general
Chapter 1 — Miscellaneous

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                    “appropriate person”, in relation to Scotland, means the Scottish

Ministers;

                    “local authority”—

                  (a)                 in relation to England and Wales, means a local authority for the

purposes of section 1(1)(a) of the Local Government Act 1999

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(c. 27) (local authorities in England and Wales that are best

value authorities), and

                  (b)                                     in relation to Scotland, means a council constituted under

section 2 of the Local Government etc. (Scotland) Act 1994

(c. 39);

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

of Employment) Regulations 1981 (S.I. 1981/1794), or any regulations

replacing those regulations, as from time to time amended.

2004 local government elections

 104   Power to change date of elections in England

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     (1)    The Secretary of State may by order provide that in 2004—

           (a)           the ordinary day of election of councillors for—

                  (i)                 all local government areas in England, or

                  (ii)                all local government areas in England, except parishes, and

           (b)           the day on which the poll is to be held at the second ordinary election

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under the Greater London Authority Act 1999 (c. 29),

            shall be changed so as to be the same as the date of the poll at the European

Parliamentary general election.

     (2)    Where the Secretary of State makes an order under subsection (1), he may by

order—

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           (a)           make provision modifying, in relation to elections in England in 2004—

                  (i)                 section 89(1) or (2) of the Local Government Act 1972 (c. 70)

(holding of elections to fill casual vacancies in the office of

councillor for a principal area), or

                  (ii)                rules made for the purposes of section 89(6) of that Act (which

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provides for casual vacancies in the office of parish councillor to

be filled in accordance with rules under section 36 of the

Representation of the People Act 1983 (c. 2));

           (b)           make provision disapplying section 16(1) of the Representation of the

People Act 1985 (c. 50) (which postpones for 3 weeks the poll at an

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election of parish councillors where the date of the poll at a European

Parliamentary general election and the ordinary day of election for

councillors in England and Wales are the same) in relation to elections

in England in 2004;

           (c)           make such provision as he thinks fit for the purpose of enabling the

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annual meeting in 2004 of an authority to which subsection (3) applies

to be held after the date of the poll at the European Parliamentary

general election.

     (3)    This subsection applies to—

           (a)           any of the following for which 2004 is not a year of ordinary elections

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of councillors to the council—

                  (i)                 a county council in England,

 

 

Local Government Bill
Part 8 — Miscellaneous and general
Chapter 1 — Miscellaneous

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                  (ii)                a district council, and

                  (iii)               a parish council;

           (b)           an authority established by Part 4 of the Local Government Act 1985

(c. 51) (joint authorities);

           (c)           a police authority established under section 3 of the Police Act 1996

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(c. 16);

           (d)           the Metropolitan Police Authority.

     (4)    Where the National Assembly for Wales makes an order under section 105, the

Secretary of State may by order make in relation to elections in England such

consequential provision, including provision excluding or modifying the

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application of any enactment, as he thinks fit.

     (5)    Before making an order under this section, the Secretary of State must

consult—

           (a)           the Electoral Commission, and

           (b)           such other persons or bodies as he considers appropriate.

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     (6)    Subsection (5) may be satisfied by consultation before, as well as by

consultation after, the commencement of this section.

     (7)    In subsection (1)—

                    “local government area” has the same meaning as in the Representation of

the People Act 1983 (c. 2);

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                    “ordinary election” is to be read in accordance with section 2(7) of the

Greater London Authority Act 1999 (c. 29).

     (8)    In subsection (4) “enactment” includes an enactment comprised in secondary

legislation within the meaning of the Interpretation Act 1978 (c. 30).

 105   Power to change date of elections in Wales

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     (1)    The National Assembly for Wales may by order provide that in 2004 the

ordinary day of election of councillors for—

           (a)           all local government areas in Wales, or

           (b)           all local government areas in Wales, except communities, or

           (c)           all communities,

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            shall be changed so as to be the same as the date of the poll at the European

Parliamentary general election.

     (2)    Where the Assembly makes an order under subsection (1), it may by order—

           (a)           make provision modifying, in relation to elections in Wales in 2004—

                  (i)                 section 89(1) or (2) of the Local Government Act 1972 (c. 70)

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(holding of elections to fill casual vacancies in the office of

councillor for a principal area), or

                  (ii)                rules made for the purposes of section 89(6) of that Act (which

provides for casual vacancies in the office of community

councillor to be filled in accordance with rules under section 36

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of the Representation of the People Act 1983);

           (b)           make provision disapplying section 16(1) of the Representation of the

People Act 1985 (c. 50) (which postpones for 3 weeks the poll at an

election of community councillors where the date of the poll at a

European Parliamentary general election and the ordinary day of

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