Commentary on provisions of Act
Section 1: Removal of Secretary of State’s powers to appoint trustees
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Subsection (1) repeals the Secretary of State’s power to appoint special trustees in England and trustees to certain NHS bodies in England that can hold charitable property. Those bodies are NHS foundation trusts, the NHS Commissioning Board (informally known as NHS England), clinical commissioning groups, and special health authorities. Legislation already provides for the repeal of the power of the Secretary of State to, by order, appoint trustees for NHS trusts (section 179(2) of the Health and Social Care Act 2012). This repeal has not yet been commenced (but will be commenced at the same time as the repeals of the Secretary of State’s powers to appoint trustees to the NHS bodies covered by this Act are commenced).
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Subsection (2) confers on the Secretary of State a power to make regulations to make provision in consequence of the repeal of the appointment of trustee powers.
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Subsections (3) to (7) sets out the general provisions about the powers to make regulations under subsection (2) and the Parliamentary procedures that apply to such regulations.
Section 2: Section 1: supplementary provision
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This section confers on the Secretary of State a power to make regulations to transfer charitable property from the trustees of an NHS trust or an NHS foundation trust to that trust, and sets out what further provision the regulations may make and what Parliamentary procedure will apply to them. This power seeks to enable the Secretary of State to ensure that prior to the repeal of his powers to appoint trustees by section 1, and, as a result, trustees’ appointments being revoked, any trust property held by trustees appointed for an NHS trust or NHS foundation trust can be transferred back to the trust for which the trustees were appointed. The Board of the NHS trust or NHS foundation trust would then act as the corporate trustee of that charitable property. This power applies only to transfers from trustees appointed for NHS trusts and NHS foundation trusts, (rather than trustees appointed for other NHS bodies) because, in practice, the Secretary of State has only appointed trustees for these two types of NHS body.
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Where the Secretary of State exercises this regulation making power, subsection (2) seeks to ensure that any discretion given to the trustees in legislation is exercisable by the NHS trust or NHS foundation trust following the transfer of the charitable property to them. This provision is subject to subsections (3) and (4) which give a person to whom trust property is transferred under this section the discretion to apply that property, or income arising from it, for "any purposes relating to the health service". This applies even where the terms of the original trust were more restrictive, for example where property was held by trustees wholly or mainly for the hospitals for which they were appointed or for purposes relating to hospital services.
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Subsections (5) and (6) apply the provisions of section 217 of the National Health Service Act 2006 to subsection (1). This enables regulations made under subsection (1) to make provision for transfers of trust property to include rights and liabilities arising from that property, for the effect of any such transfer on third parties, and in relation to stamp duty.
Section 3: Transfer of right to royalties relating to "Peter Pan"
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This section makes amendments to sections 301 and 304 of, and Schedule 6 to, the Copyright, Designs and Patents Act 1988 to provide for the transfer of the rights in perpetuity to royalties, or other remuneration as agreed, in respect of the public performance, commercial publication or communication to the public of the play "Peter Pan" by J.M. Barrie. These rights are currently conferred on special trustees (appointed by the Secretary of State) for Great Ormond Street Hospital and will instead be conferred on the new independent charity for Great Ormond Street Hospital.
Section 4: Extent
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Sections 1 and 2 and Schedule 1 extend to England and Wales only, and that the remainder of the provisions of the Act extend to England and Wales, Scotland and Northern Ireland.
Section 5: Commencement
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Sections 1 and 2 and Schedule 1 come into force on such day or days as the Secretary of State may by regulations appoint. Section 3 and Schedule 2 come into force at the end of the period of two months beginning with the day on which Royal Assent is received. Sections 4, 5 and 6 come into force the day on Royal Assent.
Section 6: Short Title
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This section is self-explanatory.
Schedule 1: Consequential Amendments
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Schedule 1 makes the consequential changes to primary legislation that are required as a result of the amendments made by section 1. For example, it makes consequential changes to address the position that it is only the Secretary of State’s powers to appoint trustees to English NHS bodies and to appoint English special trustees that are being repealed.
Schedule 2: Supplementary Provisions
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Schedule 2 provides that the new recipient of the royalties in respect of "Peter Pan" (the new GOSH Charity) is to be entitled to payment of the royalties or other remuneration due to the old recipient (the special trustees for Great Ormond Street Hospital) where the royalties fell due before section 3 and Schedule 2 come into force. It also provides that paragraph 5 of Schedule 6 to the Copyright, Designs and Patents Act 1988 (procedure for determining the amount payable) applies in relation to such royalties or other remuneration as if the new GOSH Charity had been the trustee before section 3 and Schedule 2 come into force.
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Paragraph 5 of Schedule 2 provides a power for the Secretary of State to amend by regulations the provisions of the Copyright, Designs and Patents Act 1988 which confer the right to royalties in respect of "Peter Pan" on the Great Ormond Street Hospital Children’s Charity. If the new GOSH Charity is involved in a charitable merger such regulations may confer the right to the "Peter Pan" royalties on the charitable body into which the new GOSH charity has merged. The Schedule also sets out the Parliamentary procedure applicable to such regulations and provides that they may also make transitional, transitory, saving, incidental or supplementary provision.
