Section 30: Transfers of property etc. from pre-commencement regulators
78.This section gives the Secretary of State a power to give directions requiring any pre-commencement regulator to make a scheme or schemes for the transfer to OFCOM of any of that regulator’s property, rights and liabilities. The Office of Communications Act 2002 gives the Secretary of State a power to require that such schemes are prepared in draft form. Before making such a scheme the pre-commencement regulator must consult OFCOM.
79.Such transfer schemes will become effective only if the Secretary of State approves them. Subsection (6) allows the Secretary of State to approve such schemes subject to modification.
*the meaning of modification is given in subsection (1) of section 405 and includes omissions, alterations and additions. Cognate expressions shall be construed accordingly.
80.Subsections (10) and (11) provide for the circumstances in which the Secretary of State may herself prepare a transfer scheme. These are: (i) in order to transfer property, rights and liabilities from herself to OFCOM; and (ii) in order to transfer property, rights and liabilities from a pre-commencement regulator to OFCOM where either (a) the regulator has not complied with a direction of the Secretary of State to prepare a scheme, or (b) the scheme prepared by the regulator is not approved by the Secretary of State.
81.Schedule 2 covers the contents and effect of transfer schemes. It explains that a transfer scheme is to set out the property, rights and liabilities that are to be transferred. As soon as a scheme comes into force, property transferred by that scheme vests in OFCOM, and any agreement made by the transferor has effect as if made in the name of OFCOM. The Secretary of State may retrospectively modify the scheme as appropriate. The Schedule also describes the circumstances in which third parties whose interests are affected by the operation of a scheme – whether due to any diminution in value of their interests or rights, or any increase in the burden of their liabilities - are entitled to compensation. Any dispute as to compensation is to go to arbitration.
