(1) Subject to the following provisions, a best value authority may charge a person for providing a service to him if—
(a) the authority is authorised, but not required, by an enactment to provide the service to him, and
(b) he has agreed to its provision.
(2) Subsection (1) does not apply if the authority—
(a) has power apart from this section to charge for the provision of the service, or
(b) is expressly prohibited from charging for the provision of the service.
(3) The power under subsection (1) is subject to a duty to secure that, taking one financial year with another, the income from charges under that subsection does not exceed the costs of provision.
(4) The duty under subsection (3) shall apply separately in relation to each kind of service.
(5) Within the framework set by subsections (3) and (4), a best value authority may set charges as it thinks fit and may, in particular—
(a) charge only some persons for providing a service;
(b) charge different persons different amounts for the provision of a service.
(6) In carrying out functions under this section, a best value authority shall have regard to such guidance as the appropriate person may issue.
(7) The following shall be disregarded for the purposes of subsection (2)(b)—
(a) section 111(3) of the Local Government Act 1972 (c. 70) (subsidiary powers of local authorities not to include power to raise money),
(b) section 34(2) of the Greater London Authority Act 1999 (c. 29) (corresponding provision for Greater London Authority), and
(c) section 3(2) of the Local Government Act 2000 (c. 22) (well-being powers not to include power to raise money).
(8) In subsection (1), “enactment” includes an enactment comprised in subordinate legislation (within the meaning of the Interpretation Act 1978 (c. 30)).
(1) The appropriate person may by order disapply section 93(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—
(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.
(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
(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
(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;
(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 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, 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 (c. 42) (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 thing to which the order under this section relates.
(7) In this section—
“best value authority” does not include—
a police authority established under section 3 of the Police Act 1996 (c. 16),
the Common Council of the City of London in its capacity as a police authority,
the Metropolitan Police Authority, or
the London Development Agency;
“ordinary functions”, in relation to a best value authority, means functions of the authority which are not functions under this section.
(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
(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—
(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,
(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.
(5) In subsection (1)(b), “company” has the same meaning as in Part 5 of the Local Government and Housing Act 1989.
(1) If it appears to the Secretary of State that an enactment (whenever passed or made), other than section 93(2) or 95(2), prevents or obstructs best value 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.
(2) The Secretary of State may by order amend, repeal, revoke or disapply an enactment (whenever passed or made), other than section 93, 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 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,
(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,
(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.
(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.
(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 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
(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.
(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));
“ordinary functions”, in relation to a best value authority, means functions of the authority which are not functions under section 95.
(1) Before making an order under section 97, 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 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 97, 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
(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 97 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.
(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 97 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 97(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 before Parliament under subsection (2).
(7) Nothing in this section applies to an order under section 97 which is made only for the purpose mentioned in section 97(10).
(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 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
(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 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—
(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;
“English local authority” means—
a county council in England,
a district council,
a London borough council,
the Common Council of the City of London in its capacity as a local authority, or
the Council of the Isles of Scilly.
(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 99(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);
(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);
(e) to make orders under sections 95 to 97 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 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).
(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 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
(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 resolution of, each House of Parliament.
(8) In this section “English local authority” has the meaning given by section 99(7).
(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
(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;
(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.
(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 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).
(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—
(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 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—
“appropriate person”, in relation to Scotland, means the Scottish Ministers; and
“relevant authority” means—
a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39),
the Strathclyde Passenger Transport Authority, or
any other body to which Part 1 of the Local Government in Scotland Act 2003 (asp 1) (best value and accountability) applies.
(1) The appropriate person shall exercise his power to give directions under section 101(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 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 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 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,
those that he had as an employee of the authority.
(3) The appropriate person shall exercise his power to give directions under section 101(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 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”) 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 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)—
(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 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 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, 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,
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 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—
“appropriate person”, in relation to Scotland, means the Scottish Ministers;
“local authority”—
in relation to England and Wales, means a local authority for the purposes of section 1(1)(a) of the Local Government Act 1999 (c. 27) (local authorities in England and Wales that are best value authorities), and
in relation to Scotland, means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);
“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.
(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 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—
(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 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 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 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 of councillors to the council—
(i) a county council in England,
(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 (c. 16);
(d) the Metropolitan Police Authority.
(4) Where the National Assembly for Wales makes an order under section 104, the Secretary of State may by order make in relation to elections in England such consequential provision, including provision excluding or modifying the 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.
(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);
“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).
(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,
shall be changed so as to be the same as the date of the poll at the European Parliamentary general election.