Deregulation and Contracting Out Act 1994
1994 c. 40
An Act to amend, and make provision for the amendment of, statutory provisions and rules of law in order to remove or reduce certain burdens affecting persons in the carrying on of trades, businesses or professions or otherwise, and for other deregulatory purposes; to make further provision in connection with the licensing of operators of goods vehicles; to make provision for and in connection with the contracting out of certain functions vested in Ministers of the Crown, local authorities, certain governmental bodies and the holders of certain offices; and for purposes connected therewith.
[3rd November 1994]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Power to remove or reduce certain statutory burdens on businesses, individuals etc.
(1) If, with respect to any provision made by an enactment, a Minister of the Crown is of the opinion—
(a) that the effect of the provision is such as to impose, or authorise or require the imposition of, a burden affecting any person in the carrying on of any trade, business or profession or otherwise, and
(b) that, by amending or repealing the enactment concerned and, where appropriate, by making such other provision as is referred to in subsection (4)(a) below, it would be possible, without removing any necessary protection, to remove or reduce the burden or, as the case may be, the authorisation or requirement by virtue of which the burden may be imposed,
he may, subject to the following provisions of this section and sections 2 to 4 below, by order amend or repeal that enactment.
(2) The reference in subsection (1)(b) above to reducing the authorisation or requirement by virtue of which a burden may be imposed includes a reference to shortening any period of time within which the burden may be so imposed.
(3) In this section and sections 2 to 4 below, in relation to an order under this section,—
(a) “ the existing provision ” means the provision by which the burden concerned is imposed or, as the case may be, is authorised or required to be imposed; and
(b) “ the relevant enactment ” means the enactment containing the existing provision.
(4) An order under this section shall be made by statutory instrument and may do all or any of the following—
(a) make provision (whether by amending any enactment or otherwise) creating a burden which relates to the subject matter of, but is less onerous than that imposed by, the existing provision;
(b) make such modifications of enactments as, in the opinion of the Minister concerned, are consequential upon, or incidental to, the amendment or repeal of the relevant enactment;
(c) contain such transitional provisions and savings as appear to the Minister to be appropriate;
(d) make different provision for different cases or different areas;
but no order shall be made under this section unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
(5) In this section and sections 2 to 4 below—
(a) “ Minister of the Crown ” has the same meaning as in the Ministers of the Crown Act 1975 and includes the Scottish Ministers where the functions of a Minister of the Crown under this section have transferred to them under section 53 of the Scotland Act 1998 and “ Minister ” shall be construed accordingly;
(b) “ burden ” includes a restriction, requirement or condition (including one requiring the payment of fees), together with—
(i) any sanction (whether criminal or otherwise) for failure to observe the restriction or to comply with the requirement or condition; and
(ii) any procedural provisions (including provisions for appeal) relevant to that sanction; and
(c) “ enactment ”, subject to subsection (6) below, means an enactment contained in this Act or in any other Act passed before or in the same Session as this Act, or any provision of an order under this section.
(6) In paragraph (c) of subsection (5) above—
(a) “ Act ” does not include anything contained in Northern Ireland legislation, within the meaning of section 24 of the Interpretation Act 1978; and
(b) the reference to an enactment is a reference to an enactment as for the time being amended, extended or applied by or under any Act mentioned in that paragraph.
(7) Where a restriction, requirement or condition is subject to a criminal sanction (as mentioned in subsection (5)(b)(i) above), nothing in this section shall authorise the making of an amendment which would have the effect of leaving the restriction, requirement or condition in place but producing a different criminal sanction or altering any procedural provisions relevant to the criminal sanction.
(1) If an order under section 1 above creates a new criminal offence, then, subject to subsections (2) and (3) below, that offence shall not be punishable—
(a) on indictment with imprisonment for a term of more than two years; or
(b) on summary conviction with imprisonment for a term exceeding six months or a fine exceeding level 5 on the standard scale or both.
(2) In the case of an offence which, if committed by an adult, is triable either on indictment or summarily and is not an offence triable on indictment only by virtue of—
(a) Part V of the Criminal Justice Act 1988, or
(b) section 292(6) and (7) of the Criminal Procedure (Scotland) Act 1995,
the reference in subsection (1)(b) above to level 5 on the standard scale shall be construed as a reference to the statutory maximum.
(3) If an order under section 1 above abolishes an offence contained in the relevant enactment and the maximum penalties for that offence are greater than those specified in subsection (1) above, the order may create a new criminal offence having maximum penalties not exceeding those applicable to the offence which is abolished.
(4) An order under section 1 above shall not contain any provision—
(a) providing for any forcible entry, search or seizure, or
(b) compelling the giving of evidence,
unless, and then only to the extent that, a provision to that effect is contained in the relevant enactment and is abolished by the order.
(1) Before a Minister makes an order under section 1 above, he shall—
(a) consult such organisations as appear to him to be representative of interests substantially affected by his proposals; and
(b) consult such other persons as he considers appropriate.
(2) If it appears to the Minister, as a result of the consultation required by subsection (1) above, that it is appropriate to vary the whole or any part of his proposals, he shall undertake such further consultation with respect to the variations as appears to him to be appropriate.
(3) If, after the conclusion of—
(a) the consultation required by subsection (1) above, and
(b) any further consultation undertaken as mentioned in subsection (2) above,
the Minister considers it appropriate to proceed with the making of an order under section 1 above, he shall lay before Parliament or, where the Minister is a Scottish Minister, before the Scottish Parliament a document containing his proposals in the form of a draft of the order, together with details of the matters specified in subsection (4) below.
(4) The matters referred to in subsection (3) above are—
(a) the burden, authorisation or requirement which it is proposed to remove or reduce;
(b) whether the existing provision affords any necessary protection and, if so, how that protection is to be continued if the burden, authorisation or requirement is removed or reduced;
(c) whether any savings in cost are estimated to result from the proposals and, if so, either the estimated amount or the reasons why savings should be expected;
(d) any other benefits which are expected to flow from the removal or reduction of the burden, authorisation or requirement;
(e) any consultation undertaken as required by subsection (1) or subsection (2) above;
(f) any representations received as a result of that consultation; and
(g) the changes (if any) which the Minister has made to his original proposals in the light of those representations.
(5) In giving details of the representations referred to in subsection (4)(f) above, the Minister shall not disclose any information relating to a particular person or business except—
(a) with the consent of that person or of the person carrying on that business; or
(b) in such a manner as not to identify that person or business.
(6) If, before the day on which this section comes into force, any consultation was undertaken which, had it been undertaken after that day, would to any extent have satisfied the requirements of subsection (1) above, those requirements shall to that extent be taken to have been satisfied.
(1) Where a document has been laid before Parliament under section 3(3) above, no draft of an order under section 1 above to give effect (with or without variations) to proposals in that document shall be laid before Parliament until after the expiry of the period for Parliamentary consideration, as defined in subsection (2) below.
(2) In this section “ the period for Parliamentary consideration ”, in relation to a document, means the period of sixty days beginning on the day on which it was laid before Parliament.
(3) In reckoning the period of sixty days referred to in subsection (2) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days and, in relation to the Scottish Parliament, no account shall be taken of any time during which the Parliament is dissolved or is in recess for more than 4 days..
(4) In preparing a draft of an order under section 1 above to give effect, with or without variations, to proposals in a document laid before Parliament under section 3(3) above, the Minister concerned shall have regard to any representations made during the period for Parliamentary consideration and, in particular, to any resolution or report of, or of any committee of, either House of Parliament with regard to the document.
(5) Together with a draft of an order laid before Parliament under section 1(4) above, the Minister concerned shall lay a statement giving details of—
(a) any representations, resolution or report falling within subsection (4) above; and
(b) the changes (if any) which, in the light of any such representations, resolution or report, the Minister has made to his proposals as contained in the document previously laid before Parliament under section 3(3) above.
(6) Subsection (5) of section 3 above shall apply in relation to the representations referred to in subsection (5)(a) above as it applies in relation to the representations referred to in subsection (4)(f) of that section.
(1) If, with respect to any provision made by an enactment, a Minister of the Crown is of the opinion—
(a) that the effect of the provision is such as to impose, or authorise or require the imposition of, a restriction, requirement or condition affecting any person in the carrying on of any trade, business or profession or otherwise, and
(b) that, by exercising any one or more of the powers conferred by Schedule 1 to this Act, it would be possible, without jeopardising any necessary protection, to improve (so far as fairness, transparency and consistency are concerned) the procedures for enforcing the restriction, requirement or condition,
he may, subject to the following provisions of this section, by order exercise the power or powers accordingly.
(2) No order shall be made under this section in any case where the sole or main effect which the restriction, requirement or condition may be expected to have on each person on whom it is imposed is an effect on him in his personal capacity, and not as a person carrying on a trade, business or profession.
(3) Where the relevant enactment—
(a) contains a power for the Minister to make regulations or orders; and
(b) provides for that power to be exercisable so as to give effect, with or without modifications, to proposals submitted by some other person,
the Minister shall consult with that person before he makes an order under this section.
(4) An order under this section shall be made by statutory instrument and may do all or any of the following—
(a) make provision as to the consequences of any failure to comply with a provision made by the order;
(b) contain provisions (including provisions modifying enactments relating to the periods within which proceedings must be brought) which are consequential upon, or supplemental or incidental to, the provisions made by the order;
(c) contain such transitional provisions and savings as appear to the Minister to be appropriate;
(d) make different provision for different cases or different areas;
and a statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(5) Nothing in any order made under this section shall—
(a) preclude an enforcement officer from taking immediate enforcement action against any person, or from requiring any person to take immediate remedial action, in any case where it appears to the officer to be necessary to take such action or impose such a requirement; or
(b) require such an officer to disclose any information the disclosure of which would be contrary to the public interest.
(6) In this section and Schedule 1 to this Act—
“ enactment ” means an enactment within the meaning of section 1 above, and any subordinate legislation made under such an enactment;
“ enforcement action ”—
in relation to any restriction, requirement or condition, means any action taken with a view to or in connection with imposing any sanction (whether criminal or otherwise) for failure to observe or comply with it; and
in relation to a restriction, requirement or condition relating to the grant or renewal of licences, includes any refusal to grant, renew or vary a licence, the imposition of any condition on the grant or renewal of a licence and any variation or revocation of a licence;
“ enforcement officer ” does not include—
the Director of Public Prosecutions;
the Lord Advocate or a procurator fiscal; or
the Director of Public Prosecutions for Northern Ireland,
but, subject to that, means any person who is authorised, whether by or under the relevant enactment or otherwise, to take enforcement action;
“ licence ” includes any authorisation (by whatever name called) to do anything which would otherwise be unlawful;
“ Minister of the Crown ” and “ Minister ” have the same meanings as in section 1 above;
“ the relevant enactment ” means the enactment containing the provision by which the restriction, requirement or condition is imposed or, as the case may be, is authorised or required to be imposed;
“ remedial action ” means action taken by any person in order to avoid enforcement action being taken against him;
“ subordinate legislation ” has the same meaning as in the Interpretation Act 1978.
(1) The Secretary of State shall by order prescribe model provisions with respect to appeals against enforcement action with a view to their being incorporated, if thought fit and with or without modifications, in enactments to which subsection (2) below applies.
(2) This subsection applies to enactments which include provision the effect of which is to impose, or authorise or require the imposition of, a restriction, requirement or condition affecting any person in the carrying on of any trade, business or profession or otherwise.
(3) The Secretary of State shall perform his duty under this section in the manner which he considers is best calculated to secure—
(a) that appeals determined in accordance with the model provisions are determined without unnecessary delay; and
(b) that the costs or expenses incurred by the parties to appeals so determined are kept to the minimum.
(4) Model provisions prescribed by an order under this section may provide for the appointment of persons to hear and determine appeals and confer powers on persons so appointed, including in particular—
(a) power to appoint experts and their own counsel or solicitor;
(b) power to require respondents to disclose documents and other material;
(c) power to summon or, in Scotland, to cite witnesses;
(d) power to make interim orders, including orders staying or, in Scotland, suspending enforcement action; and
(e) power to award costs or expenses to appellants and, in certain cases, against them.
(5) Model provisions so prescribed may also—
(a) confer a right for interested persons to make representations before enforcement action is taken;
(b) require the giving of reasons to such persons for any decision to take such action;
(c) require appellants to state their grounds of appeal and respondents to furnish statements by way of answer;
(d) enable appellants to amend their grounds of appeal before the hearing;
(e) require appeals to be determined on the merits rather than by way of review; and
(f) provide for further appeals to courts on points of law.
(6) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(7) In this section—
“enactment” does not include anything contained in Northern Ireland legislation but, subject to that, includes an enactment contained in an Act (whenever passed) and an enactment contained in subordinate legislation (whenever made);
“enforcement action” has the same meaning as in section 9 of the Regulatory Reform Act 2001;
“ interested person ” means—
the person against whom enforcement action may be or has been taken;
(b) any other person who will or may be required to meet, or to make a significant contribution towards, the cost of observing the restriction or complying with the requirement or condition; or
(c) where the enforcement action which may be or has been taken relates specifically to goods or services which are to be or have been supplied by a person other than the one against whom enforcement action may be or has been taken, that person;
“Northern Ireland legislation” means—
Northern Ireland legislation within the meaning of section 24 of the Interpretation Act 1978; and
instruments, within the meaning of the Interpretation Act (Northern Ireland) 1954, made under such legislation;
“subordinate legislation” has the same meaning as in the Interpretation Act 1978.
15 Building societies: issue of deferred shares at a premium.
In section 7 of the Building Societies Act 1986 (power to raise funds) after subsection (2) there shall be inserted—
(2A) In the case of deferred shares, the power to raise funds by the issue of shares includes the issue of shares at a premium.
(2B) If a building society issues deferred shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to the society’s reserves.
18 Licensed premises at international ports: permitted hours.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) In the Licensing (Scotland) Act 1976, after section 63 there shall be inserted—
Exemption of international ports from restrictions on permitted hours.
63A (1) The Secretary of State may by order made by statutory instrument bring this section into operation at any port which appears to him to be a port at which there is a substantial amount of international passenger traffic.
(2) At a port where this section is in operation, neither section 54 nor section 119 of this Act nor any provision or rule of law prohibiting or restricting the sale or supply of alcoholic liquor on Sunday shall apply to licensed premises which are within an approved wharf.
(3) Before the Secretary of State makes an order bringing this section into operation at a port, he shall satisfy himself that arrangements have been made for affording reasonable facilities in licensed premises within any approved wharf at that port for obtaining hot and cold beverages other than alcoholic liquor at all times when alcoholic liquor is obtainable for consumption in those premises.
(4) If it appears to the Secretary of State that at any port where this section is in operation such arrangements as are mentioned in subsection (3) above are not being maintained, he shall revoke the order bringing this section into operation as respects that port, but without prejudice to his power of making a further order with respect to that port.
(5) In this section, “approved wharf” has the same meaning as in the Customs and Excise Management Act 1979..
25 Controls on fund-raising for charitable institutions: exclusion of connected companies.
(1) In Part II of the Charities Act 1992 (control of fund-raising for charitable institutions) section 58(1) (definitions) shall be amended as follows.
(2) In the definition of “commercial participator”, after “person” there shall be inserted “ (apart from a company connected with the institution) ”.
(3) In paragraph (a) of the definition of “professional fund-raiser”, after “institution” there shall be inserted “ or a company connected with such an institution ”.
26 Offences under section 63 of the Charities Act 1992: creation of statutory defence.
(1) Section 63 of the Charities Act 1992 (which makes it an offence to solicit property for an institution while falsely representing that it is a registered charity) shall be amended as follows.
(2) After subsection (1) there shall be inserted—
(1A) In any proceedings for an offence under subsection (1), it shall be a defence for the accused to prove that he believed on reasonable grounds that the institution was a registered charity.
(3) In subsection (2) (meaning of “registered charity”) for the words “subsection (1)” there shall be substituted “ this section ”.
27 Applications for permits to conduct public charitable collections: time-limits.
In section 67 of the Charities Act 1992 (applications for permits to conduct public charitable collections) paragraph (b) of subsection (3) (which provides that an application shall not be made more than six months before the relevant day) and the word “but” immediately preceding it shall be omitted.
31 Slaughterhouses and knackers’ yards: uniting of enforcement functions.
Schedule 9 to this Act (which contains provisions designed to facilitate the uniting of enforcement functions relating to slaughterhouses and knackers’ yards) shall have effect.
32 Building regulations: power to repeal or modify provisions of local Acts.
(1) In Schedule 1 to the Building Act 1984 (building regulations) in paragraph 11(1), after paragraph (b) there shall be inserted
or
(c) any provision of a local Act passed before the day on which the Deregulation and Contracting Out Act 1994 is passed,
.
(2) In section 14 of that Act (consultation) there shall be inserted at the end—
(4) Before making any building regulations containing provision of the kind authorised by paragraph 11(1)(c) of Schedule 1 to this Act, the Secretary of State shall consult—
(a) the Building Regulations Advisory Committee,
(b) such persons or bodies as appear to him to be representative of local authorities, and
(c) such other bodies as appear to him to be representative of the interests concerned.
33 Amendment of duty of care etc. as respects waste.
(1) In section 34 of the Environmental Protection Act 1990 (duty of care etc. as respects controlled waste), after subsection (4) there shall be inserted—
(4A) For the purposes of subsection (1)(c)(ii) above—
(a) a transfer of waste in stages shall be treated as taking place when the first stage of the transfer takes place, and
(b) a series of transfers between the same parties of waste of the same description shall be treated as a single transfer taking place when the first of the transfers in the series takes place.
(2) Subsection (1) above shall be deemed always to have had effect, except in relation to any proceedings for failure to comply with the duty imposed by section 34(1) of that Act which were commenced before the coming into force of subsection (1) above.
(3) Where any such proceedings have not been disposed of before the coming into force of subsection (1) above, it shall be a defence to show that the conduct in question would not have constituted a breach of the duty concerned had subsection (1) above been in force at the time.
34 Controls on London lorries: replacement of discretionary exceptions.
(1) Subsection (3) below applies to any order having effect under or by virtue of section 6 (orders similar to traffic regulation orders) or 9 (experimental traffic orders) of the Road Traffic Regulation Act 1984 (“the 1984 Act”) which provides for a relevant traffic control to be subject to a relevant exception, being an order in relation to which the appropriate authority is a London borough council or the Common Council of the City of London.
(2) For the purposes of this section—
(a) a relevant traffic control is a prohibition or restriction on the use of a road for traffic which does not apply to motor vehicles generally but applies to some or all heavy commercial vehicles, and
(b) a relevant exception is an exception whose application, in the case of any heavy commercial vehicles, depends to any extent on the exercise of a delegated discretion.
(3) The Secretary of State may, for the purpose of replacing a relevant exception to a relevant traffic control with such other exception as he thinks fit, by order make any such variation of an order to which this subsection applies as the appropriate authority may make.
(4) The Secretary of State shall only exercise the power conferred by subsection (3) above if he is satisfied that doing so—
(a) will have the effect that less of a burden is imposed on the carrying on of business, and
(b) will not have the effect of removing any necessary protection.
(5) The Secretary of State may, for the purpose of amending as he thinks fit an exception introduced under subsection (3) above (including such an exception as amended), by order make any such variation of the order varied under that subsection as the appropriate authority may make.
(6) The Secretary of State may, for the purpose of amending as he thinks fit a provision of an order having effect under or by virtue of section 6 or 9 of the 1984 Act which re-enacts (with or without modification) an exception introduced under subsection (3) above (including such an exception as amended) (“a re-enactment order”), by order make any such variation of the order as the appropriate authority may make.
(7) The Secretary of State shall only exercise the power conferred by subsection (5) or (6) above if he is satisfied—
(a) that, if he does so, it will still be the case that less of a burden is imposed on the carrying on of business than was imposed before the replacement under subsection (3) above, and
(b) that doing so will not have the effect of removing any necessary protection.
(8) Paragraphs 35 to 37 of Part VI of Schedule 9 to the 1984 Act (validity of certain orders) shall apply to an order under this section as they apply to an order to which that Part applies; and in those paragraphs, in their application by virtue of this subsection—
(a) “the relevant powers” means the powers conferred by this section with respect to the order in question, and
(b) “the relevant requirements” means the requirements of this section with respect to that order.
(9) Before making any order under this section, the Secretary of State shall consult with such representative organisations as he thinks fit; and any such order shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(10) Where in the case of any order proposed to be made by the council of a London borough or the Common Council of the City of London under or by virtue of section 6 or 9 of the 1984 Act, it is proposed to include in the order any provision—
(a) varying or revoking an order under this section,
(b) varying or revoking an order having effect under or by virtue of section 6 or 9 of that Act which is varied by an order under this section, or
(c) varying or revoking a re-enactment order,
the order shall not be made except with the consent of the Secretary of State.
(11) Where, in the case of any order proposed to be made by the council of a London borough or the Common Council of the City of London under or by virtue of section 9 of the 1984 Act, it is proposed to include in the order provision under section 10(1)(a) of that Act relating to—
(a) an order under this section,
(b) an order having effect under or by virtue of section 6 or 9 of that Act which is varied by an order under this section, or
(c) a re-enactment order,
the order shall not be made except with the consent of the Secretary of State.
(12) In this section—
“appropriate authority”, in relation to an order having effect under or by virtue of section 6 or 9 of the 1984 Act, means the authority by which the order is, or is deemed to be, made;
“heavy commercial vehicle” and “road” have the same meanings as in the 1984 Act;
“motor vehicle” means a vehicle treated as a motor vehicle for the purposes of the 1984 Act;
“re-enactment order” has the meaning given by subsection (6) above; and
“the 1984 Act” has the meaning given by subsection (1) above.
37 Power to repeal certain health and safety provisions.
(1) The appropriate authority may by regulations repeal or, as the case may be, revoke—
(a) any provision which is an existing statutory provision for the purposes of Part I of the Health and Safety at Work etc. Act 1974 (“the 1974 Act”),
(b) any provision of regulations under section 15 of the 1974 Act (health and safety regulations) which has effect in place of a provision which was an existing statutory provision for the purposes of that Part,
(ba) any of the relevant nuclear provisions,
(bb) any provision of regulations under section 74 of the Energy Act 2013 which has effect in place of any of the relevant nuclear provisions,
(c) any provision which is an existing statutory provision for the purposes of the Health and Safety at Work (Northern Ireland) Order 1978 (“the 1978 Order”), or
(d) any provision of regulations under Article 17 of the 1978 Order (health and safety regulations) which has effect in place of a provision which was an existing statutory provision for the purposes of that Order.
(2) Before making regulations under subsection (1) above, the appropriate authority shall consult—
(a) in the case of regulations under paragraph (a) or (b) of that subsection, the Health and Safety Commission,
(a) in the case of regulations under paragraph (a) of that subsection repealing or revoking a provision specified in section 117(4) of the Railways Act 1993, the Office of Rail and Road ,
(aa) in the case of regulations under paragraph (a) of that subsection not falling within paragraph (a) of this subsection, the Health and Safety Executive ,
(ab) in the case of regulations under paragraph (b) of that subsection revoking a provision of regulations which make provision exclusively in relation to transport systems falling within paragraph 1(3) of Schedule 3 to the Railways Act 2005, the Office of Rail and Road,
(ac) in the case of regulations under paragraph (b) of that subsection not falling within paragraph (ab) of this subsection, the Health and Safety Executive ,
(ad) in the case of regulations under paragraph (ba) or (bb) of that subsection, the Office for Nuclear Regulation,
(b) in the case of regulations under paragraph (c) or (d) of that subsection, the Health and Safety Agency for Northern Ireland,
and, in either any case, such other persons as the appropriate authority considers appropriate.
(3) Instead of consulting such other persons as the appropriate authority considers it appropriate to consult under subsection (2) above, the authority may require the Health and Safety Commission or, as the case may be, the Health and Safety Agency for Northern Ireland the required consultee to consult such persons as it considers appropriate for the purpose of deciding how it should respond to consultation under that subsection.
(4) Instead of consulting a person whom the appropriate authority considers it appropriate to consult under subsection (2) above, the authority may require the Health and Safety Commission or, as the case may be, the Health and Safety Agency for Northern Ireland the required consultee to consult the person for the purpose of deciding how it should respond to consultation under that subsection.
(4A) In subsections (3) and (4), “ the required consultee ” means the body which the appropriate authority is required to consult by virtue of subsection (2)(a) to (b).
(5) The appropriate authority may require consultation under subsection (3) or (4) above to be carried out in accordance with the authority’s directions.
(6) Regulations under subsection (1) above may contain such transitional provisions and savings as the appropriate authority considers appropriate.
(7) Regulations under paragraph (a) (b), (ba) or (bb) of subsection (1) above shall be made by statutory instrument, and no instrument shall be made under that paragraph unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.
(8) Regulations under subsection (1)(c) or (d) above—
(a) shall be statutory rules for the purposes of the Statutory Rules (Northern Ireland) Order 1979, and
(b) shall be subject to affirmative resolution, as defined in section 41(4) of the Interpretation Act (Northern Ireland) 1954, as if they were statutory instruments within the meaning of that Act.
(9) In this section, “appropriate authority”—
(a) in relation to regulations under subsection (1)(a) (b), (ba) or (bb) above, means the Secretary of State, and
(b) in relation to regulations under subsection (1)(c) or (d) above, means the Department concerned (within the meaning of the 1978 Order, but as if any reference to that Order included a reference to this section).
(10) In subsection (1), “ the relevant nuclear provisions ” means—
(a) sections 1, 3 to 5, 22 and 24A of the Nuclear Installations Act 1965,
(aa) section 6 of that Act, so far as it relates to sites in respect of which nuclear site licences (within the meaning of that Act) have been granted, and
(b) any regulations made under any of those sections,
so far as they have effect in England and Wales or Scotland.
After section 87 of the Children Act 1989 there shall be inserted—
Suspension of duty under section 87(3).
87A (1) The Secretary of State may appoint a person to be an inspector for the purposes of this section if—
(a) that person already acts as an inspector for other purposes in relation to independent schools to which section 87(1) applies, and
(b) the Secretary of State is satisfied that the person is an appropriate person to determine whether the welfare of children provided with accommodation by such schools is adequately safeguarded and promoted while they are accommodated by them.
(2) Where—
(a) the proprietor of an independent school to which section 87(1) applies enters into an agreement in writing with a person appointed under subsection (1),
(b) the agreement provides for the person so appointed to have in relation to the school the function of determining whether section 87(1) is being complied with, and
(c) the local authority in whose area the school is situated receive from the person with whom the proprietor of the school has entered into the agreement notice in writing that the agreement has come into effect,
the authority’s duty under section 87(3) in relation to the school shall be suspended.
(3) Where a local authority’s duty under section 87(3) in relation to any school is suspended under this section, it shall cease to be so suspended if the authority receive—
(a) a notice under subsection (4) relating to the person with whom the proprietor of the school entered into the relevant agreement, or
(b) a notice under subsection (5) relating to that agreement.
(4) The Secretary of State shall terminate a person’s appointment under subsection (1) if—
(a) that person so requests, or
(b) the Secretary of State ceases, in relation to that person, to be satisfied that he is such a person as is mentioned in paragraph (b) of that subsection,
and shall give notice of the termination of that person’s appointment to every local authority.
(5) Where—
(a) a local authority’s duty under section 87(3) in relation to any school is suspended under this section, and
(b) the relevant agreement ceases to have effect,
the person with whom the proprietor of the school entered into that agreement shall give to the authority notice in writing of the fact that it has ceased to have effect.
(6) In this section—
(a) “proprietor” has the same meaning as in the Education Act 1944, and
(b) references to the relevant agreement, in relation to the suspension of a local authority’s duty under section 87(3) as regards any school, are to the agreement by virtue of which the authority’s duty under that provision as regards that school is suspended.
Duties of inspectors under section 87A.
87B (1) The Secretary of State may impose on a person appointed under section 87A(1) (“an authorised inspector”) such requirements relating to, or in connection with, the carrying out under substitution agreements of the function mentioned in section 87A(2)(b) as the Secretary of State thinks fit.
(2) Where, in the course of carrying out under a substitution agreement the function mentioned in section 87A(2)(b), it appears to an authorised inspector that there has been a failure to comply with section 87(1) in the case of a child provided with accommodation by the school to which the agreement relates, the inspector shall give notice of that fact to the Secretary of State.
(3) Where, in the course of carrying out under a substitution agreement the function mentioned in section 87A(2)(b), it appears to an authorised inspector that a child provided with accommodation by the school to which the agreement relates is suffering, or is likely to suffer, significant harm, the inspector shall—
(a) give notice of that fact to the local authority in whose area the school is situated, and
(b) where the inspector is required to make inspection reports to the Secretary of State, supply that local authority with a copy of the latest inspection report to have been made by the inspector to the Secretary of State in relation to the school.
(4) In this section—
(a) “proprietor” has the same meaning as in the Education Act 1944, and
(b) references to substitution agreement are to an agreement between an authorised inspector and the proprietor of an independent school by virtue of which the local authority’s duty in relation to the school under section 87(3) is suspended.