Energy Bill (HC Bill 135)

Power to take persons and equipment etc onto premises

9 In exercising the power of entry mentioned in paragraph 8, an inspector
may—

(a) be accompanied—

(i) 5by any person approved by the ONR for the purpose, and

(ii) if the inspector has reasonable cause to expect any serious
obstruction in the exercise of any of the inspector’s powers,
by a constable, and

(b) take along any equipment and materials required for any purpose
10for which the inspector is exercising the power of entry.

Power to deal with cause of imminent danger

10 (1) Sub-paragraph (2) applies where an inspector finds any article or substance
in relevant premises in circumstances in which the inspector has reasonable
cause to believe it is a cause of imminent danger of serious personal injury.

(2) 15The inspector may, if authorised, do any of the following—

(a) seize the article or substance;

(b) cause it to be made harmless or the risk of harm from it to be reduced
(in either case, by destruction or otherwise);

(c) for the purpose mentioned in paragraph (b), seize any other article or
20substance.

(3) Before any article that forms part of a batch of similar articles, or any
substance, is dealt with under sub-paragraph (2)(b), the inspector must, if it
is practicable,—

(a) take a sample, and

(b) 25give a portion of the sample, marked so as to be identifiable, to a
responsible person.

(4) As soon as practicable after seizing or dealing with any article or substance
under sub-paragraph (2), the inspector must make and sign a written report
setting out the circumstances in which the article or substance was seized or
30so dealt with.

(5) The inspector must give a signed copy of the report to a responsible person.

(6) If that person is not the owner of the article or substance, the inspector must
also—

(a) give a signed copy of the report to the owner, or

(b) 35if that is not possible because—

(i) the inspector cannot find out the owner’s name or address
after making reasonable enquiries, and

(ii) the owner has not indicated a willingness in accordance with
section 92 to receive a signed copy of the report by any means
40mentioned in subsection (1)(b) of that section,

give a further signed copy of the report to that responsible person.

(7) For the purposes of this paragraph—

(a) “responsible person”, in relation to any article or substance, means a
responsible person at the premises in which the inspector finds the
45article or substance;

(b) in the case of a report in electronic form, any signature required on
the report or a copy of it may be an electronic signature (within the
meaning given in section 7(2) of the Electronic Communications Act
2000).

5Powers exercisable in relation to particular articles or substances or in particular
circumstances

11 (1) An authorised inspector may cause any article or substance in relevant
premises—

(a) to be dismantled;

(b) 10to be tested;

(c) to have any other process applied to it.

(2) The inspector may exercise any of those powers only if it appears to the
inspector—

(a) that the article or substance has caused, or is likely to cause, danger
15to health or safety, or

(b) that it is desirable to do so for the nuclear security purposes.

(3) Before exercising a power in this paragraph, the inspector must consult
anyone whom the inspector considers it appropriate to consult about the
dangers (if any) of what is proposed.

(4) 20Anything done to the article or substance under this paragraph must not
damage or destroy it unless in the circumstances that is unavoidable for the
relevant purpose.

(5) If requested by a person who has responsibilities in relation to the relevant
premises, and is on the premises, the inspector must allow anything done to
25the article or substance under this paragraph to be done in that person’s
presence, unless the inspector considers that that would be prejudicial to
national security.

12 (1) An authorised inspector may take possession of any article or substance
found on relevant premises and retain it for as long as necessary—

(a) 30for it to be examined;

(b) for anything to be done to it which the inspector may cause to be
done under paragraph 11;

(c) to ensure that it is not tampered with before any examination or
other procedure mentioned in paragraph (a) or (b) is complete;

(d) 35to ensure that it is available for use in—

(i) any proceedings for an offence under any of the relevant
statutory provisions, or

(ii) any proceedings relating to an improvement notice or a
prohibition notice.

(2) 40The inspector may exercise that power only if it appears to the inspector—

(a) that it is desirable to do so for the nuclear security purposes, or

(b) that the article or substance has caused, or is likely to cause, danger
to health or safety.

(3) Before taking possession of any substance under this paragraph, the
45inspector must, if it is practicable,—

(a) take a sample of it, and

(b) give a portion of the sample, marked so as to be identifiable, to a
responsible person at the premises.

(4) An inspector who takes possession of any article or substance under this
paragraph must—

(a) 5if it is practicable to do so, give a notice to that effect to a responsible
person at the premises;

(b) otherwise, fix such a notice in a conspicuous position at the premises.

(5) The notice must include sufficient information about the article or substance
to identify it.

10Powers of inspection and examination and to take samples

13 (1) An authorised inspector may carry out any examination or investigation
necessary for the relevant purpose and, in doing so, may—

(a) take measurements and photographs, and

(b) make recordings.

(2) 15An authorised inspector may take and deal with samples of—

(a) any article or substance found in relevant premises, or

(b) the atmosphere in or in the vicinity of relevant premises.

(3) The Secretary of State may by regulations make provision about—

(a) the procedure to be followed in taking any such samples, and

(b) 20the way in which any such samples are to be dealt with.

14 (1) An authorised inspector may direct that any relevant premises, or any article
or substance in them, must be left undisturbed for as long as reasonably
necessary for the purposes of any examination or investigation necessary for
the purpose of any of the relevant statutory provisions.

(2) 25A direction under sub-paragraph (1)—

(a) may relate to part of any relevant premises;

(b) may relate to particular aspects of any premises or article or
substance.

Powers to require information and documents

15 (1) 30An authorised inspector may require any person who the inspector has
reasonable cause to believe is able to give any information relevant to any
examination or investigation under paragraph 13—

(a) to answer any question the inspector thinks fit, and

(b) to sign a declaration of the truth of the person’s answers.

(2) 35Where a person required to answer questions under this paragraph has
nominated another person to be present, the person may not be required to
answer questions except in the presence of the nominated person (if any).

(3) When exercising the power in this paragraph, an inspector may allow
another person to be present (in addition to the nominated person (if any)).

(4) 40No answer given by a person by virtue of this paragraph is admissible in
evidence against the person, or the person’s spouse or civil partner, in any
proceedings.

16 (1) An authorised inspector may—

(a) require any relevant documents to be produced, and

(b) inspect and take copies of (or of any information in) any relevant
documents.

(2) 5For this purpose—

(a) “document” includes information recorded in any form;

(b) “relevant document” means a record or other document which—

(i) is required to be kept by virtue of any of the relevant
statutory provisions, or

(ii) 10the inspector needs to see for the purposes of any
examination or investigation under paragraph 13.

(3) In the case of a relevant document that consists of information held in
electronic form, the inspector may—

(a) require it to be produced—

(i) 15in a legible form, or

(ii) in a form from which it can readily be produced in a legible
form, and

(b) require access to, and inspect and check the operation of, any
computer and any associated apparatus or material which is or has
20been used in connection with the relevant document.

Offences

17 (1) It is an offence for a person to contravene any requirement imposed by an
inspector under this Part of this Schedule.

(2) It is an offence for a person to prevent or attempt to prevent any other person
25from—

(a) appearing before an inspector, or

(b) answering any question to which an inspector may require an
answer by virtue of paragraph 15.

(3) A person who commits an offence under this paragraph is liable—

(a) 30on summary conviction—

(i) to imprisonment for a term not exceeding 12 months (in
England and Wales or Scotland) or 6 months (in Northern
Ireland),

(ii) to a fine not exceeding £20,000, or

(iii) 35to both;

(b) on conviction on indictment—

(i) to imprisonment for a term not exceeding 2 years,

(ii) to a fine, or

(iii) to both.

(4) 40In relation to an offence committed before the commencement of section
154(1) of the Criminal Justice Act 2003 (general limit on magistrates’ court’s
powers to imprison), the reference in sub-paragraph (3)(a)(i), as it has effect
in England and Wales, to 12 months is to be read as a reference to 6 months.

18 (1) It is an offence for a person intentionally to obstruct an inspector in the
45exercise or performance of the inspector’s functions.

(2) A person who commits an offence under this paragraph is liable on
summary conviction—

(a) to imprisonment for a term not exceeding 51 weeks (in England and
Wales), 12 months (in Scotland) or 6 months (in Northern Ireland),

(b) 5to a fine not exceeding level 5 on the standard scale, or

(c) to both.

(3) In relation to an offence committed before the commencement of section
281(5) of the Criminal Justice Act 2003 (alteration of penalties for summary
offences), the reference in sub-paragraph (2)(a), as it has effect in England
10and Wales, to 51 weeks is to be read as a reference to 6 months.

19 (1) It is an offence for a person falsely to pretend to be an inspector.

(2) A person who commits an offence under this paragraph is liable on
summary conviction to a fine not exceeding level 5 on the standard scale.

Supplementary powers

20 15A power conferred by this Schedule includes power to require any person to
provide any facilities or assistance relating to matters or things—

(a) within the person’s control, or

(b) in relation to which the person has responsibilities,

which are needed in order to enable an authorised inspector to exercise the
20power.

21 A power conferred by this Schedule includes power to do anything
incidental that is necessary for the relevant purpose.

Protection for documents subject to legal professional privilege etc

22 Nothing in this Part of this Schedule is to be taken to confer power to compel
25the production by any person of a document or information in respect of
which—

(a) in England and Wales or Northern Ireland, a claim to legal
professional privilege, or

(b) in Scotland, a claim to confidentiality of communications,

30could be maintained in legal proceedings.

Part 4 Supplementary

Duty to provide information to employees or their representatives

23 (1) An inspector must provide to people employed at any premises (or their
35representatives) any relevant information that needs to be provided in order
for them (or their representatives) to be kept adequately informed about
matters affecting their health, safety or welfare.

(2) Where information is provided to employees (or their representatives)
under sub-paragraph (1), the inspector must provide the same information
40to their employer.

(3) For this purpose—

(a) “relevant information”, in relation to any premises, means—

(i) factual information which is protected information within
the meaning of Schedule 9 and is relevant to the premises,
and

(ii) 5information about action which the inspector has taken or
proposes to take in relation to the premises, and

(b) “employee”, “employer” and “employed” have the same meanings
as in Part 1 of the 1974 Act.

Interpretation

24 (1) 10In this Schedule—

• “authorised” is to be read in accordance with paragraph 2(4);

• “offshore installation” means any installation which is intended for
  underwater exploitation of mineral resources or exploration with a
  view to such exploitation;

• 15“premises” includes any place and, in particular, includes—

  (a)

  any vehicle, ship or aircraft,

  (b)

  any installation on land (including the foreshore and other
  land intermittently covered by water), any offshore
  installation, and any other installation (whether floating, or
  20resting on the seabed or its subsoil, or resting on other land
  covered with water or its subsoil), and

  (c)

  any tent or movable structure;

• “relevant premises”, in relation to an inspector, means premises which
  the inspector has entered—

  (a)

  25with the consent of a person who reasonably appeared to the
  inspector to be an appropriate person to give consent, or

  (b)

  in exercise of the power in paragraph 8;

• “the relevant purpose”, in relation to a power, means—

  (a)

  if an instrument of appointment authorises the inspector to
  30exercise the power only for limited purposes, that purpose;

  (b)

  in any other case, the purpose of carrying into effect the
  relevant statutory provisions;

• “ship” includes every description of vessel used in navigation;

• “substance” means any natural or artificial substance, whether solid or
  35liquid or in the form of a gas or vapour.

(2) In this Schedule, references to an inspector, in relation to any power, are to
the inspector exercising or proposing to exercise the power.

Section 83

SCHEDULE 9 Disclosure of information

Part 1 Prohibition on disclosure of protected information

5Meaning of “protected information” and related terms

1 (1) In this Schedule “protected information” means information which has
been—

(a) obtained by the ONR under section 80,

(b) provided to the ONR or an inspector under section 81,

(c) 10obtained by an inspector as a result of the exercise of any relevant
power,

(d) obtained by a health and safety inspector in the exercise of any
power under section 20 of the 1974 Act (powers of persons appointed
under section 19 of that Act),

(e) 15obtained by an ONR inquiry official as a result of the exercise of an
ONR inquiry power,

(f) provided to a person pursuant to a requirement imposed by any of
the relevant statutory provisions, or

(g) provided to the ONR or a health and safety inspector pursuant to a
20requirement imposed by any provision which is one of the relevant
statutory provisions for the purposes of Part 1 of the 1974 Act.

(2) Information is not protected information for the purposes of this Schedule if
it has been—

(a) disclosed as mentioned in paragraph 16, or

(b) 25otherwise made available to the public—

(i) by virtue of a disclosure in accordance with Part 3 of this
Schedule, or

(ii) lawfully from other sources.

(3) Information received by virtue of a disclosure under paragraph 22
30(anonymised information) is not protected information.

(4) Protected information includes, in particular, information with respect to a
trade secret which an inspector, a health and safety inspector or an ONR
inquiry official has obtained as a result of entering premises in exercise of a
relevant power, a power conferred under section 20 of the 1974 Act or an
35ONR inquiry power.

(5) In this Schedule—

• “ONR inquiry official” means a person on whom functions are
  conferred under section 68(5)(a);

• “ONR inquiry power” means a power conferred by regulations under
  40under section 68(5)(a);

• “the original holder” of protected information means the person who
  obtained the information, or to whom it was provided, as mentioned
  in sub-paragraph (1).

Part 2 Offences relating to disclosure and use of protected information

Prohibition on disclosing protected information

2 Protected information must not be disclosed—

(a) 5by the original holder of the information, or

(b) by any other person holding it who has received it directly or
indirectly from the original holder by virtue of a disclosure, or
disclosures, in accordance with this Schedule,

except in accordance with Part 3 of this Schedule.

10Offence of disclosing protected information in contravention of paragraph 2

3 It is an offence for a person to disclose information in contravention of
paragraph 2.

Offence of using protected information in contravention of a restriction in Part 3

4 It is an offence for a person to use protected information in contravention of
15a restriction under paragraph 10(3), 11(2), 12(2), 13(2), 14(2) or 15(2).

Defence to offences under paragraph 3 and 4

5 It is a defence for a person charged with an offence under paragraph 3 or 4
to prove—

(a) that the person did not know and had no reason to suspect that the
20information was protected information, or

(b) that the person took all reasonable precautions and exercised all due
diligence to avoid committing the offence.

Penalty for offences under paragraph 3 and 4

6 (1) A person who commits an offence under paragraph 3 or 4 is liable—

(a) 25on summary conviction—

(i) to imprisonment for a term not exceeding 12 months (in
England and Wales or Scotland) or 6 months (in Northern
Ireland),

(ii) to a fine not exceeding the statutory maximum, or

(iii) 30to both;

(b) on conviction on indictment—

(i) to imprisonment for a term not exceeding 2 years,

(ii) to a fine, or

(iii) to both.

(2) 35In the application of sub-paragraph (1) to England and Wales in relation to
an offence committed before the commencement of section 154(1) of the
Criminal Justice Act 2003 (general limit on magistrates’ court’s power to
imprison), the reference in sub-paragraph (1)(a)(i) to 12 months is to be read
as a reference to 6 months.

Part 3 Protected information: permitted disclosures and restrictions on use

Disclosure with appropriate consent

7 (1) Paragraph 2 does not prohibit a disclosure of protected information if it is
5made with the appropriate consent.

(2) For this purpose “the appropriate consent” means—

(a) if the information was obtained as mentioned in paragraph 1(1) as a
result of any premises being entered—

(i) by an inspector in exercise of a relevant power,

(ii) 10by a health and safety inspector in exercise of a power under
section 20 of the 1974 Act, or

(iii) by an ONR inquiry official in exercise of an ONR inquiry
power,

the consent of a person having responsibilities in relation to the
15premises;

(b) in any other case, the consent of the person from whom the
information was obtained, or who provided it, as mentioned in
paragraph 1(1).

Disclosure by ONR, inspectors etc

8 20Paragraph 2 does not prohibit a disclosure of protected information by—

(a) the ONR,

(b) an inspector,

(c) a health and safety inspector, or

(d) an ONR inquiry official,

25for the purposes of any of that person’s functions.

Disclosure to the ONR, inspectors etc.

9 Paragraph 2 does not prohibit a disclosure of protected information to—

(a) the ONR,

(b) an officer of the ONR,

(c) 30a person or body performing any functions of the ONR on its behalf
by virtue of section 78,

(d) an officer of such a body,

(e) a person providing advice to the ONR,

(f) an inspector, or

(g) 35a health and safety inspector.

Ministers, government departments and certain authorities

10 (1) Paragraph 2 does not prohibit the following disclosures of protected
information—

(a) a disclosure to—

(i) 40a relevant authority, or

(ii) an officer of a relevant authority, or

(b) a disclosure by a person within paragraph (a) which is necessary for
any of the purposes of the relevant authority in question.

(2) For this purpose, “relevant authority” means—

(a) a Minister of the Crown,

(b) 5the Scottish Ministers,

(c) the Welsh Ministers,

(d) a Northern Ireland Department,

(e) the Environment Agency,

(f) the Scottish Environment Protection Agency,

(g) 10the Office of Rail Regulation,

(h) the Civil Aviation Authority, or

(i) any other government department.

(3) A person within sub-paragraph (1)(a) to whom protected information is
disclosed by virtue of any provision of this Schedule may not use the
15information for a purpose other than any of the purposes of the relevant
authority in question.

Health and safety etc

11 (1) Paragraph 2 does not prohibit the following disclosures of protected
information—

(a) 20a disclosure to a health and safety authority, or

(b) a disclosure by a health and safety authority which is—

(i) made by or with the consent of the Health and Safety
Executive, and

(ii) necessary for any of the purposes of the Health and Safety
25Executive.

(2) A health and safety authority to whom protected information is disclosed by
virtue of any provision of this Schedule may not use the information for any
purpose other than any of the purposes of the Health and Safety Executive.

(3) For this purpose, “health and safety authority” means—

(a) 30the Health and Safety Executive,

(b) an officer of the Health and Safety Executive,

(c) a person or body performing any functions of the Health and Safety
Executive on its behalf by virtue of section 13(3) of the 1974 Act,

(d) an officer of such a body,

(e) 35an adviser appointed by that Executive under section 13(7) of that
Act, and

(f) a person appointed by that Executive under section 19 of that Act as
an inspector within the meaning given in that section.

12 (1) Paragraph 2 does not prohibit the following disclosures of protected
40information—

(a) a disclosure to a person with enforcement responsibilities;

(b) a disclosure by such a person which is—

(i) made by or with the consent of the enforcing authority in
question, and