Energy Bill (HC Bill 135)

(ii) is necessary for the purposes of any function which the
enforcing authority in question has in its capacity as an
enforcing authority.

(2) A person with enforcement responsibilities to whom protected information
5is disclosed by virtue of any provision of this Schedule may not use the
information otherwise than for the purposes of any function which the
enforcing authority in question has in its capacity as such.

(3) For this purpose, “person with enforcement responsibilities” means—

(a) an enforcing authority within the meaning of the 1974 Act, other than
10the ONR or the Health and Safety Executive;

(b) an officer of an authority within paragraph (a);

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

13 (1) Paragraph 2 does not prohibit the following disclosures of protected
15information—

(a) a disclosure to a Northern Ireland health and safety authority;

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

(i) made by or with the consent of the Health and Safety
20Executive for Northern Ireland, and

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

(2) A Northern Ireland health and safety authority to whom protected
information is disclosed by virtue of any provision of this Schedule may not
25use the information for any purpose other than any of the purposes of the
Health and Safety Executive for Northern Ireland.

(3) For this purpose, Northern Ireland health and safety authority means—

(a) the Health and Safety Executive for Northern Ireland,

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

(c) 30a person or body performing any functions of the Health and Safety
Executive for Northern Ireland on its behalf by virtue of Article
15(1)(a) of the Health and Safety at Work (Northern Ireland) Order
1978 (S.I. 1978/1039 (N.I. 9)S.I. 1978/1039 (N.I. 9)),

(d) an officer of such a body,

(e) 35an adviser appointed by that Executive under Article 15(1)(c) of that
Order, and

(f) a person appointed by that Executive under Article 21 of that Order
as an inspector within the meaning of that Article.

Local authorities and water authorities etc

14 (1) 40Paragraph 2 does not prohibit the following disclosures of protected
information—

(a) a disclosure by the original holder to an officer of a local authority or
relevant water authority who is authorised by the authority to
receive the information;

(b) 45a disclosure by an officer of a local authority or relevant water
authority to whom the information is disclosed by virtue of
paragraph (a) which is necessary for a relevant purpose.

(2) A person to whom information is disclosed by virtue of sub-paragraph (1)(a)
must not use the information for a purpose other than a relevant purpose.

(3) For the purposes of this paragraph—

• “local authority” includes the following—

  (a)

  5a joint authority established by Part 4 of the Local
  Government Act 1985;

  (b)

  an authority established for an area in England by an order
  under section 207 of the Local Government and Public
  Involvement in Health Act 2007 (joint waste authorities);

  (c)

  10an economic prosperity board established under section 88 of
  the Local Democracy, Economic Development and
  Construction Act 2009,

  (d)

  a combined authority established under section 103 of that
  Act,

  (e)

  15the London Fire and Emergency Planning Authority;

  (f)

  the Broads Authority;

  (g)

  a National Park authority;

• “relevant water authority” means—

  (a)

  a water undertaker,

  (b)

  20a sewerage undertaker,

  (c)

  a water authority,

  (d)

  a water development board, or

  (e)

  Scottish Water;

• “relevant purpose” in relation to an officer of a local authority or
  25relevant water authority, means any purpose of the authority in
  connection with—

  (a)

  any of the relevant statutory provisions or any of the
  provisions which are relevant statutory provisions for the
  purposes of Part 1 of the 1974 Act, or

  (b)

  30any provision of, or made under, primary legislation which
  relates to public health, public safety or the protection of the
  environment.

Police

15 (1) Paragraph 2 does not prohibit the following disclosures of protected
35information—

(a) a disclosure by the original holder to a constable authorised by a
chief officer of police to receive it;

(b) a disclosure by a constable to whom it is disclosed by virtue of
paragraph (a) which is necessary for any of the purposes of the police
40in connection with—

(i) the relevant statutory provisions, or

(ii) any provision of, or made under, primary legislation which
relates to public health, public safety or national security.

(2) A constable to whom information is disclosed by virtue of sub-paragraph (1)
45must not use the information for a purpose other than a purpose of the police
in connection with—

(a) any of the relevant statutory provisions or any of the provisions
which are relevant statutory provisions for the purposes of Part 1 of
the 1974 Act, or

(b) any provision of, or made under, primary legislation which relates to
5public health, public safety or national security.

Disclosure required under legislation

16 Paragraph 2 does not prohibit a disclosure of protected information which
is made in accordance with an obligation under—

(a) the Freedom of Information Act 2000,

(b) 10the Freedom of Information (Scotland) Act 2002, or

(c) environmental information regulations within the meaning given in
section 39(1A) of the Freedom of Information Act 2000.

Legal proceedings, inquiries and investigations

17 Paragraph 2 does not prohibit a disclosure of protected information for the
15purposes of—

(a) any legal proceedings,

(b) an ONR inquiry,

(c) an inquiry under section 14(2A) of the 1974 Act which is relevant to
the ONR’s purposes,

(d) 20an investigation held by virtue of section 67,

(e) any report of such proceedings, ONR inquiry or inquiry under
section 14(2A) of the 1974 Act or any special report under section 67.

18 Paragraph 2 does not prohibit a disclosure of protected information which
is made—

(a) 25by an inspector, a health and safety inspector or an ONR inquiry
official,

(b) to a person who appears to the person making the disclosure to be
likely to be a party to any civil proceedings arising out of any
accident, occurrence, situation or other matter, and

(c) 30in the form of a written statement of relevant facts observed by the
person making the disclosure in the course of exercising a relevant
power, a power under section 20 of the 1974 Act or an ONR inquiry
power.

19 Paragraph 2 does not prohibit a disclosure of protected information which
35is made—

(a) by the ONR, an inspector, a health and safety inspector or an ONR
inquiry official, and

(b) for any of the purposes specified in section 17(2)(a) to (d) of the Anti-
terrorism, Crime and Security Act 2001 (criminal proceedings and
40investigations).

20 Section 18 of that Act (restriction on disclosure of information for overseas
purposes) has effect in relation to a disclosure authorised by sub-paragraph
(1) as it has effect in relation to a disclosure authorised by any of the
provisions to which section 17 of that Act applies.

Disclosure for safeguards purposes

21 Paragraph 2 does not prohibit a disclosure of protected information which
is made for the purposes of any of the safeguards obligations.

Anonymised information

22 5Paragraph 2 does not prohibit a disclosure of protected information which
is made in a form calculated to prevent the information from being
identified as relating to a particular person or case.

Part 4 General

10Interaction with other legislation

23 The prohibition in paragraph 2 is to be disregarded for the purposes of—

(a) section 44 of the Freedom of Information Act 2000, and

(b) section 26 of the Freedom of Information (Scotland) Act 2002,

(which provide for exemptions from disclosure requirements under those
15Acts for information subject to statutory prohibitions on disclosure).

24 Nothing in this Part of this Act is to be taken to permit or require a disclosure
of information which is prohibited by or under any provision of primary
legislation (including, in particular, section 79 or 80 of the Anti-terrorism,
Crime and Security Act 2001 (prohibition on disclosure of information
20relating to nuclear security)).

Section 89

SCHEDULE 10 Provisions relating to offences

Interpretation

1 In this Schedule—

• 25“offence” means an offence created by or under a relevant provision;

• “relevant provision” means any of the relevant statutory provisions
  other than any provision made by or under the Nuclear Safeguards
  Act 2000.

Venue

2 (1) 30If an offence is committed in connection with any plant or substance, the
offence may be treated as having been committed at the place where the
plant or substance is for the time being.

(2) Sub-paragraph (1) applies only if it is necessary to treat the offence as having
been committed there for the purpose of conferring jurisdiction on any court
35to entertain proceedings for the offence.

(3) In this paragraph—

• “plant” includes any machinery, equipment or appliance;

Energy BillPage 154

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

(4) This paragraph is subject to any provision made in nuclear regulations by
virtue of section 58(5)(b) (treatment of offences as having been committed at
5a specified place).

Extension of time for bringing summary proceedings

3 (1) This paragraph applies where—

(a) a special report on a matter is made under section 67(1);

(b) a report is made by a person holding an ONR inquiry;

(c) 10a coroner’s inquest is held into a relevant death; or

(d) a public inquiry under the Fatal Accidents and Sudden Deaths
Inquiry (Scotland) Act 1976 is held into a relevant death.

(2) A “relevant death” is the death of any person which may have been
caused—

(a) 15by an accident which happened while at work,

(b) by a disease which the person contracted (or probably contracted)
while at work, or

(c) by an accident, act or omission which occurred in connection with
the work of any person.

(3) 20Sub-paragraph (4) applies if it appears from—

(a) the report mentioned in sub-paragraph (1)(a) or (b),

(b) the inquest mentioned in sub-paragraph (1)(c), or

(c) the proceedings at the inquiry mentioned in sub-paragraph (1)(d),

that a relevant provision was contravened at a time which is material in
25relation to the subject-matter of the report, inquest or inquiry.

(4) Summary proceedings against any person liable to be proceeded against in
respect of the contravention may be commenced at any time within 3
months of—

(a) the making of the report in question, or

(b) 30(as the case may be) the conclusion of the inquest or inquiry.

4 (1) This paragraph applies to any offence that a person commits as a result of a
provision or requirement that the person is subject to as the designer,
manufacturer, importer or supplier of any thing.

(2) Summary proceedings for the offence may be commenced at any time
35within 6 months from the date on which there comes to the knowledge of the
ONR evidence that appears sufficient to the ONR—

(a) to justify a prosecution for the offence, or

(b) in relation to an offence in Scotland, to justify a report to the Lord
Advocate with a view to consideration of the question for
40prosecution.

(3) For this purpose—

(a) a certificate of the ONR stating that such evidence came to its
knowledge on a specified date is to be taken as conclusive evidence
of that fact,

(b) a document purporting to be such a certificate, and to be signed on
behalf of the ONR, is to be presumed to be such a certificate unless
the contrary is proved, and

(c) in relation to an offence in Scotland, section 136(3) of the Criminal
5Procedure (Scotland) Act 1995 (date of commencement of
proceedings) has effect as it has effect for the purposes of that section.

Continuation of offences

5 (1) This paragraph applies where an offence is committed as a result of a failure
to do something at or within a time fixed by or under a relevant provision.

(2) 10The offence is to be deemed to continue until the thing is done.

Offences due to fault of other person

6 (1) A person (“A”) is guilty of an offence if—

(a) another person (“B”) commits the offence, and

(b) B’s commission of the offence is due to the act or default of A,

15and A is liable to be proceeded against and dealt with accordingly.

(2) For this purpose it does not matter whether or not proceedings are taken
against B.

(3) A person (“A”) is guilty of an offence if—

(a) A is a person other than the Crown,

(b) 20the offence would have been committed by the Crown but for the fact
that the provision under which the offence is committed does not
bind the Crown, and

(c) the Crown’s commission of the offence would have been due to the
act or default of A,

25and A is liable to be proceeded against and dealt with accordingly.

(4) This paragraph is subject to any provision made in nuclear regulations.

Offences by bodies corporate

7 (1) Where an offence committed by a body corporate is proved—

(a) to have been committed with the consent or connivance of an officer
30of the body corporate, or

(b) to be attributable to neglect on the part of an officer of the body
corporate,

that officer (as well as the body corporate) is guilty of the offence and is liable
to be proceeded against and dealt with accordingly.

(2) 35In sub-paragraph (1) “officer”, in relation to a body corporate, means—

(a) any director, manager, secretary or other similar officer of the body
corporate, or

(b) any person purporting to act in any such capacity.

(3) In sub-paragraph (2) “director”, in relation to a body corporate whose affairs
40are managed by its members, means a member of the body corporate.

Offences by partnerships

8 (1) Proceedings for an offence alleged to have been committed by a partnership
may be brought in the name of the partnership.

(2) Rules of court relating to the service of documents have effect in relation to
5proceedings for an offence as if the partnership were a body corporate.

(3) For the purposes of such proceedings the following provisions apply as they
apply in relation to a body corporate—

(a) section 33 of the Criminal Justice Act 1925 and Schedule 3 to the
Magistrates’ Courts Act 1980, and

(b) 10section 18 of the Criminal Justice Act (Northern Ireland) 1945 and
Schedule 4 to the Magistrates’ Courts (Northern Ireland) Order 1981.

(4) A fine imposed on a partnership on its conviction for an offence is to be paid
out of the partnership assets.

(5) Where an offence committed by a partnership is proved—

(a) 15to have been committed with the consent or connivance of a partner,
or

(b) to be attributable to neglect on the part of a partner,

the partner (as well as the partnership) is guilty of the offence and is liable to
be proceeded against and dealt with accordingly.

(6) 20In this paragraph “partner” includes a person purporting to act as a partner.

Restriction on institution of proceedings in England and Wales

9 Proceedings for an offence in England and Wales may only be instituted—

(a) by the ONR or an inspector, or

(b) by, or with the consent of, the Director of Public Prosecutions.

25Prosecutions by inspectors in England and Wales

10 An inspector may prosecute proceedings for an offence before a magistrates’
court in England and Wales if authorised to do so by the inspector’s
instrument of appointment (see paragraph 2 of Schedule 8).

Onus of proving limits of what is practicable etc

11 (1) 30This paragraph applies if regulations under this Part create an offence
consisting of—

(a) a failure to comply with a duty or requirement to do something so far
as practicable (or reasonably practicable), or

(b) a failure to use the best means do something.

(2) 35The regulations may provide that it is for the defendant to prove that—

(a) it was not practicable (or reasonably practicable) to do more than
was in fact done to satisfy the duty or requirement, or

(b) there was no better practicable means than was in fact used to satisfy
the duty or requirement.

Evidence

12 (1) This paragraph applies where a requirement is imposed by a relevant
provision for an entry to be made in any register or other record.

(2) If the entry is made, it is—

(a) 5admissible in evidence, or

(b) in Scotland, sufficient evidence of the facts stated in the entry,

against the person by or on whose behalf the entry is made.

(3) If the entry is not made, and the requirement relates to making the entry in
respect of observance with a relevant provision, the fact that the entry is not
10made—

(a) is admissible in evidence, or

(b) in Scotland, sufficient evidence that the provision has not been
observed.

Power of court to order cause of offence to be remedied

13 (1) 15This paragraph applies where—

(a) a person (“P”) is convicted of an offence, and

(b) it appears to the court that the matters in respect of which P is
convicted are matters that are within P’s power to remedy.

(2) The court may (in addition to, or instead of, imposing any punishment)
20order P to take such steps as the order may specify for the purpose of
remedying those matters.

(3) The steps are to be taken within such time as may be fixed by the order (“the
remedial period”).

(4) The court may extend or further extend the remedial period on an
25application.

(5) An application under sub-paragraph (4) must be made—

(a) before the end of the remedial period, or

(b) before the end of that period as extended on a previous application.

(6) Where P is ordered to remedy any matters by an order under this
30paragraph—

(a) it is an offence for P to fail to comply with the order, but

(b) P is not liable under any relevant provision in respect of those
matters to the extent that they continue during—

(i) the remedial period, or

(ii) 35any extension of that period granted under sub-paragraph
(4).

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

(a) on summary conviction—

(i) to imprisonment for a term not exceeding 12 months (in
40England and Wales or Scotland) or 6 months (in Northern
Ireland),

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

(iii) to both;

(b) on conviction on indictment—

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

(ii) to a fine, or

(iii) to both.

(8) In the application of sub-paragraph (7) to England and Wales in relation to
5an 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 (7)(a)(i) to 12 months is to be read
as a reference to 6 months.

Section 97

SCHEDULE 11 10Transfers to the Office for Nuclear Regulation

Part 1 Introductory

1 In this Schedule—

• “the HSE” means the Health and Safety Executive;

• 15“the interim ONR” means the agency of the HSE currently known as
  the Office for Nuclear Regulation;

• “TUPE regulations” means the Transfer of Undertakings (Protection of
  Employment) Regulations 2006 (S.I. 2006/246S.I. 2006/246).

Part 2 20Staff transfer schemes

Power to make staff transfer schemes

2 (1) The Secretary of State may make one or more schemes under which an
employee to whom the scheme applies becomes an employee of the ONR
(but this is subject to provision contained in the scheme by virtue of
25paragraph 6).

(2) A scheme under sub-paragraph (1) is referred to in this Schedule as a “staff
transfer scheme”.

Staff to whom a transfer may apply

3 (1) The employees to whom a transfer scheme may apply are those employees
30who fall within sub-paragraph (2).

(2) An employee falls within this sub-paragraph if, immediately before the staff
transfer scheme takes effect, the employee—

(a) was employed by the HSE under a contract of employment, and

(b) was assigned to work in the interim ONR.

(3) 35Sub-paragraph (4) applies for the purposes of determining whether an
employee was assigned as mentioned in sub-paragraph (2) where,
immediately before the transfer scheme takes effect, the employee—

(a) is on secondment,

(b) is temporarily assigned to work in another part of the HSE, or

(c) is otherwise temporarily absent.

(4) That sub-paragraph is to be read as if it operated immediately before the
date of the secondment or temporary assignment, or the date when the
5absence began, instead of immediately before the date on which the scheme
takes effect.

Content of a staff transfer scheme

4 (1) A staff transfer scheme may make provision for giving full effect to an
employee’s transfer into the employment of the ONR as a result of the
10scheme.

(2) Provision made by virtue of sub-paragraph (1) may include provision—

(a) that has the same or similar effect as the TUPE regulations (so far as
those regulations do not apply in relation to the transfer);

(b) modifying the law (including provision made by an Act or
15subordinate legislation) applicable to the employee’s employment;

(c) about the pension entitlements of the employee enjoyed
immediately before the transfer.

5 (1) A staff transfer scheme may apply to all, or to any specified class or
description of, the employees falling within paragraph 4(2) or to specified
20employees so falling.

(2) “Specified” means specified in the scheme.

6 (1) A staff transfer scheme may make provision enabling an employee to object
to the transfer which would otherwise be effected by the scheme including
provision as to how such an objection is to be made and as to the
25consequences of it.

(2) A staff transfer scheme may make provision allowing an employee to be
treated as being temporarily assigned to the ONR for a period limited by the
scheme, whether at the employee’s election or in the exercise of a discretion
conferred on the Secretary of State by the scheme.

(3) 30Provision made by virtue of sub-paragraph (2) may include provision—

(a) allowing the employee to elect to end the period of temporary
assignment by agreeing to become an employee of the ONR or by
objecting to the transfer under sub-paragraph (1);

(b) as to the consequences of the expiry of the period of temporary
35assignment without such an election having been made;

(c) as to the employee’s pay (and the liability to pay it) and the terms
and conditions on which the employee is engaged.

Part 3 Property transfer schemes

40Power to make property transfer schemes

7 (1) The Secretary of State may make one or more schemes transferring
qualifying property, rights and liabilities of the HSE to the ONR.