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Energy Bill


Energy Bill
Schedule 9 — Disclosure of information
Part 3 — Protected information: permitted disclosures and restrictions on use

152

 

(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

public health, public safety or national security.

5

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)   

the Freedom of Information (Scotland) Act 2002, or

10

(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

purposes of—

15

(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)   

an investigation held by virtue of section 67,

20

(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)   

by an inspector, a health and safety inspector or an ONR inquiry

25

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)   

in the form of a written statement of relevant facts observed by the

30

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

is made—

35

(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

investigations).

40

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.

 
 

Energy Bill
Schedule 10 — Provisions relating to offences

153

 

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         

Paragraph 2 does not prohibit a disclosure of protected information which

5

is made in a form calculated to prevent the information from being

identified as relating to a particular person or case.

Part 4

General

Interaction with other legislation

10

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

Acts for information subject to statutory prohibitions on disclosure).

15

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

relating to nuclear security)).

20

Schedule 10

Section 89

 

Provisions relating to offences

Interpretation

1          

In this Schedule—

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

25

“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)  

If an offence is committed in connection with any plant or substance, the

30

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

to entertain proceedings for the offence.

35

      (3)  

In this paragraph—

“plant” includes any machinery, equipment or appliance;

 
 

Energy Bill
Schedule 10 — Provisions relating to offences

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

a specified place).

5

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)   

a coroner’s inquest is held into a relevant death; or

10

(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)   

by an accident which happened while at work,

15

(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)  

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

20

(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

relation to the subject-matter of the report, inquest or inquiry.

25

      (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)   

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

30

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

within 6 months from the date on which there comes to the knowledge of the

35

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

prosecution.

40

      (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,

 
 

Energy Bill
Schedule 10 — Provisions relating to offences

155

 

(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

Procedure (Scotland) Act 1995 (date of commencement of

5

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)  

The offence is to be deemed to continue until the thing is done.

10

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,

           

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

15

      (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)   

the offence would have been committed by the Crown but for the fact

20

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,

           

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

25

      (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

of the body corporate, or

30

(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)  

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

35

(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

are managed by its members, means a member of the body corporate.

40

 
 

Energy Bill
Schedule 10 — Provisions relating to offences

156

 

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

proceedings for an offence as if the partnership were a body corporate.

5

      (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)   

section 18 of the Criminal Justice Act (Northern Ireland) 1945 and

10

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)   

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

15

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)  

In this paragraph “partner” includes a person purporting to act as a partner.

20

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.

Prosecutions by inspectors in England and Wales

25

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)  

This paragraph applies if regulations under this Part create an offence

30

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)  

The regulations may provide that it is for the defendant to prove that—

35

(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.

 
 

Energy Bill
Schedule 10 — Provisions relating to offences

157

 

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)   

admissible in evidence, or

5

(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

made—

10

(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)  

This paragraph applies where—

15

(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)

order P to take such steps as the order may specify for the purpose of

20

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

application.

25

      (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

paragraph—

30

(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)   

any extension of that period granted under sub-paragraph

35

(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

England and Wales or Scotland) or 6 months (in Northern

40

Ireland),

(ii)   

to a fine not exceeding £20,000, or

(iii)   

to both;

(b)   

on conviction on indictment—

 
 

Energy Bill
Schedule 11 — Transfers to the Office for Nuclear Regulation
Part 2 — Staff transfer schemes

158

 

(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

an offence committed before the commencement of section 154(1) of the

5

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.

Schedule 11

Section 97

 

Transfers to the Office for Nuclear Regulation

10

Part 1

Introductory

1          

In this Schedule—

“the HSE” means the Health and Safety Executive;

“the interim ONR” means the agency of the HSE currently known as

15

the Office for Nuclear Regulation;

“TUPE regulations” means the Transfer of Undertakings (Protection of

Employment) Regulations 2006 (S.I. 2006/246).

Part 2

Staff transfer schemes

20

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

paragraph 6).

25

      (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

who fall within sub-paragraph (2).

30

      (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)  

Sub-paragraph (4) applies for the purposes of determining whether an

35

employee was assigned as mentioned in sub-paragraph (2) where,

immediately before the transfer scheme takes effect, the employee—

(a)   

is on secondment,

 
 

 
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