Section 412: Transfer and pension instruments: common provisions
624.Section 412 sets out common provisions which apply to transfers of property, rights or liabilities which take place by transfer and pension instruments (defined as an order made under sections 408 or 411 or a scheme under section 409). Some examples of these are considered below. There may be situations where some but not all of a predecessor body’s functions transfer to a successor body, and the predecessor body will remain in existence after the transfer (for example the Highways Agency). This section provides that a transfer or pension instrument may provide for the apportionment or division of any property, rights or liabilities.
625.Where successor bodies take over the functions of predecessor bodies they will need also to be able to take over those things such as contracts or property which allow these functions to be carried out effectively. Contracts or leases will, on occasion, contain provisions preventing their being transferred or assigned to a third party. The consequence of a breach of such a provision may be the termination of the contract or lease. In the case of the establishment of the GLA and the functional bodies, contracts or leases will simply be transferred as the result of the transfer of an accompanying function to a successor body. It is necessary to ensure that such “anti-assignment clauses” do not operate to prevent the successor body from inheriting contract or lease. The section therefore provides for such contracts or leases to continue as if in law no transfer had taken place.
626.That property etc which is being transferred may be described specifically, or in relation to a function, or through a combination of these two. The section also provides that a transfer or pension instrument (other than an order under section 411) may provide an arbitration process for resolving any disputes which may occur concerning the effect of that instrument and, in addition, that certificates given jointly by the transferor and transferee would be conclusive for all purposes regarding the effect of the instrument.
627.The section provides that a Minister of the Crown may by order confer on successor bodies any statutory functions which were exercisable in relation to property, rights or liabilities transferred by a transfer or pension instrument. It also requires predecessor bodies, successor bodies and the managers and administrators of pension schemes to provide Ministers with such assistance or information as is reasonably required to exercise powers relating to transfer or pension instruments. The section also creates rights for the production of documents of title in certain situations, such as where the transferor is entitled to retain possession of such documents and needs to provide the transferee with a copy of them.
