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Local Government Bill


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

    52

 

 95    Power to disapply section 94(1)

     (1)    The appropriate person may by order disapply section 94(1)—

           (a)           in relation to particular descriptions of best value authority or

particular best value authorities;

           (b)           in relation to the provision of a particular kind of service by—

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                  (i)                 all best value authorities,

                  (ii)                particular best value authorities, or

                  (iii)               particular descriptions of best value authority.

     (2)    The power under subsection (1) includes power to disapply for a particular

period.

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 96    Power to trade in function-related activities through a company

     (1)    The appropriate person may by order—

           (a)           authorise best value authorities to do for a commercial purpose

anything which they are authorised to do for the purpose of carrying

on any of their ordinary functions, and

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           (b)           make provision about the persons in relation to whom authority under

paragraph (a) is exercisable.

     (2)    No order under this section may authorise a best value authority—

           (a)           to do in relation to a person anything which it is required to do in

relation to him under its ordinary functions, or

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           (b)           to do in relation to a person anything which it is authorised, apart from

this section, to do in relation to him for a commercial purpose.

     (3)    An order under this section may be made in relation to—

           (a)           all best value authorities, particular best value authorities or particular

descriptions of best value authority;

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           (b)           all things authorised to be done for the purpose of carrying on a

particular function, particular things authorised to be done for that

purpose or particular descriptions of thing authorised to be so done.

     (4)    Power conferred by an order under this section shall only be exercisable

through a company within the meaning of Part 5 of the Local Government and

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Housing Act 1989 (c. 42) (companies in which local authorities have interests).

     (5)    A best value authority on which power is conferred by an order under this

section shall be treated as a local authority for the purposes of Part 5 of the

Local Government and Housing Act 1989 if it would not otherwise be such an

authority, but only in relation to a body corporate through which it exercises,

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or proposes to exercise, the power conferred by the order.

     (6)    In its application by virtue of subsection (5), section 70(1) of the Local

Government and Housing Act 1989 (power to make provision about what a

company under the control, or subject to the influence of, a local authority

does) shall only apply in relation to the doing for a commercial purpose of the

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thing to which the order under this section relates.

     (7)    In this section—

                    “best value authority” does not include—

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

1996 (c. 16),

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

    53

 

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

police authority,

                  (c)                 the Metropolitan Police Authority, or

                  (d)                 the London Development Agency;

                    “ordinary functions”, in relation to a best value authority, means

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functions of the authority which are not functions under this section.

 97    Regulation of trading powers

     (1)    The appropriate person may by order impose conditions in relation to the

exercise by a best value authority of—

           (a)           a power to do anything for a commercial purpose, or

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           (b)           a power to do anything for such a purpose through a company.

     (2)    In exercising such a power as is mentioned in subsection (1), a best value

authority shall have regard to such guidance as the appropriate person may

issue.

     (3)    An order under this section may be made in relation to—

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           (a)           all best value authorities,

           (b)           particular best value authorities, or

           (c)           particular descriptions of best value authority.

     (4)    In this section, “best value authority” does not include—

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

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(c. 16),

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

authority,

           (c)           the Metropolitan Police Authority, or

           (d)           the London Development Agency.

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     (5)    In subsection (1)(b), “company” has the same meaning as in Part 5 of the Local

Government and Housing Act 1989 (c. 42).

 98    Power to modify enactments in connection with charging or trading

     (1)    If it appears to the Secretary of State that an enactment (whenever passed or

made), other than section 94(2) or 96(2), prevents or obstructs best value

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authorities—

           (a)           charging by agreement for the provision of a discretionary service, or

           (b)           doing for a commercial purpose anything which they are authorised to

do for the purpose of carrying on any of their ordinary functions,

            he may by order amend, repeal, revoke or disapply the enactment.

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     (2)    The Secretary of State may by order amend, repeal, revoke or disapply an

enactment (whenever passed or made), other than section 94, which makes in

relation to a best value authority provision for, or in connection with, power to

charge for the provision of a discretionary service.

     (3)    The power under subsection (1) or (2) to amend or disapply an enactment

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includes power to amend or disapply an enactment for a particular period.

     (4)    An order under this section may be made in relation to—

           (a)           all best value authorities,

 

 

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

    54

 

           (b)           particular best value authorities, or

           (c)           particular descriptions of best value authority.

     (5)    An order under subsection (1)(b) may be made in relation to—

           (a)           all things authorised to be done for the purpose of carrying on a

particular function,

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           (b)           particular things authorised to be done for that purpose, or

           (c)           particular descriptions of thing authorised to be so done.

     (6)    An order under subsection (1)(b) may not be used to authorise a best value

authority to do in relation to a person anything which it is required to do in

relation to him under its ordinary functions.

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     (7)    In exercising the power under subsection (1) or (2), the Secretary of State—

           (a)           must not make any provision which has effect in relation to Wales

unless he has consulted the National Assembly for Wales, and

           (b)           must not make any provision in relation to legislation made by the

National Assembly for Wales without the consent of the Assembly.

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     (8)    The National Assembly for Wales may submit proposals to the Secretary of

State that the power under subsection (1) or (2) should be exercised in relation

to Wales in accordance with those proposals.

     (9)    Subject to subsection (10), no order shall be made under this section unless a

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

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approved by resolution of, each House of Parliament.

     (10)   An order under this section which is made only for the purpose of amending

an earlier order under this section—

           (a)           so as to extend the earlier order, or any provision of the earlier order, to

a particular authority or to authorities of a particular description, or

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           (b)           so that the earlier order, or any provision of the earlier order, ceases to

apply to a particular authority or to authorities of a particular

description,

            shall be subject to annulment in pursuance of a resolution of either House of

Parliament.

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     (11)   In this section—

                    “discretionary service”, in relation to a best value authority, means a

service which the authority is authorised, but not required, to provide;

                    “enactment” includes an enactment comprised in subordinate legislation

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

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                    “ordinary functions”, in relation to a best value authority, means

functions of the authority which are not functions under section 96.

 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

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by his proposals, and

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

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

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

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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—

           (a)           explains his proposals,

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

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

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

the views of the National Assembly for Wales.

     (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

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

document was laid.

     (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

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           (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

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—

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

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

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).

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Performance categories

 100   Categorisation of English local authorities by reference to performance

     (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.

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     (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

performed in exercising its functions.

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

Commission—

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

           (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.

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

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.

 

 

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Part 8 — Miscellaneous and general
Chapter 1 — Miscellaneous

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

provides to have effect—

           (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—

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                    “the Audit Commission” means the Audit Commission for Local

Authorities and the National Health Service in England and Wales;

                    “English local authority” means—

                  (a)                 a county council in England,

                  (b)                 a district council,

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                  (c)                 a London borough council,

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

local authority, or

                  (e)                 the Council of the Isles of Scilly.

 101   Exercise of powers by reference to authorities’ performance categories

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     (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

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—

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

Act 1989 (c. 42);

           (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

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2000 (c. 22);

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

           (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

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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

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

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

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

     (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

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in subsection (2).

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

local authorities, to be exercised—

           (a)           in relation to—

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

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exercisable,

 

 

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

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                  (ii)                particular English local authorities, or

                  (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

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

resolution of, each House of Parliament.

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

100(7).

Contracting-out

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 102   Staff transfer matters: general

     (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

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into and carried out, or

                  (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,

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

           (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

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engaged in the provision of any of the services.

     (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

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

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).

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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.

 

 

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Part 8 — Miscellaneous and general
Chapter 1 — Miscellaneous

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

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.

5

     (8)    In this section—

                    “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

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etc. (Scotland) Act 1994 (c. 39),

                  (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.

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 103   Staff transfer matters: pensions

     (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—

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

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)—

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

contract of employment with someone other than the authority, and

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

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

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better than,

                         those that he had as an employee of the authority.

     (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

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the provision of services,

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

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,

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and

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

for the provision of any of the services,

 

 

 
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