Commentary on Clauses Section 8: Power to transfer functions
57.The Act establishes HMRC as a non-Ministerial department. It would therefore not ordinarily be covered by the provisions of the Ministers of the Crown Act 1975, which allows the transfer of functions between Ministerial departments by Order in Council, thereby removing the need for primary legislation to achieve this.
58.This section amends the Ministers of the Crown Act 1975 to allow HMRC to be treated as a Ministerial department solely for the purposes of transferring functions under that Act. Functions may therefore be transferred into or out of HMRC by Order in Council subject to negative resolution procedures.
59.Subsection (1) inserts the required text into the Ministers of the Crown Act. The effect of that text is:
	Subsections (1) and (2) of the section to be inserted into the Ministers of the Crown Act provide that the functions that may be transferred are those conferred upon either the Commissioners for HMRC, or officers of Revenue and Customs. This distinction reflects the fact that legislation confers some functions (such as responsibility for administering a particular tax regime) upon the Commissioners, while other linked functions (such as the powers required to administer that regime) are conferred upon officers of Revenue and Customs. Subsections (1) and (2) ensure that both sets of functions may be transferred under this provision.
60.There are, however, a number of restrictions imposed upon the ability to transfer functions under this section.
61.Subsection (3) operates to prevent the transfer from HMRC of any of the functions specified in section 5(1) of the Act, including the collection and management of revenues (i.e. taxes, duties and contributions) and the payment and management of tax credits.
62.Subsection (4) provides that an Order transferring functions to HMRC may limit the powers available to exercise those functions, and it may provide that the function can only be exercised with the consent of a Minister.
63.Arrangements also exist within the Scotland Act 1998 to allow the transfer of functions between Ministers of the Crown and Scottish Ministers. Section 8(2) and (3) therefore extend those arrangements to include the transfer of functions between HMRC and Scottish Ministers. Subsection (2) allows HMRC to be treated in the same manner as other ministerial departments for the transfer of functions to or from Scotland, while subsection (3) restricts this ability to prevent the transfer of HMRC functions specified in section 5(1) of the Act under this provision. Subsection (3) also permits limitations on the exercise of powers when a function is transferred into HMRC, and allows for the order to provide that a function may only be exercised with the consent of a specified member of the Scottish Executive.
64.Subsections (4) and (5) of section 8 introduce arrangements to permit the transfer of functions from HMRC to Welsh Ministers (but not from Welsh Ministers to HMRC), in a reflection of arrangements that already exist for other ministerial departments in the Government of Wales Act 1998. Subsection (4) permits the transfer of functions from HMRC to the Welsh Assembly, however subsection (5) prevents the transfer of those HMRC functions specified at section 5(1).